[Federal Register: February 8, 1999 (Volume 64, Number 25)]
[Rules and Regulations]
[Page 5963-5981]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe99-12]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AC26
Endangered and Threatened Wildlife and Plants; Determination of
Threatened Status for the Sacramento Splittail
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened status for the Sacramento splittail (Pogonichthys
macrolepidotus) pursuant to the Endangered Species Act of 1973, as
amended (Act). Sacramento splittail occur in Suisun Bay and the San
Francisco Bay-Sacramento-San Joaquin River Estuary (Estuary) in
California. The Sacramento splittail has declined by 62 percent over
the last 15 years. This species is primarily threatened by changes in
water flows and water quality resulting from the export of water from
the Sacramento and San Joaquin rivers, periodic prolonged drought, loss
of shallow-water habitat, introduced aquatic species, and agricultural
and industrial pollutants. Designation of critical habitat is not
prudent at this time. This rule implements the protection and recovery
provisions afforded by the Act for Sacramento splittail.
EFFECTIVE DATE: March 10, 1999.
ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the
Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service,
3310 El Camino Avenue, Suite 130, Sacramento, CA 95821-6340.
FOR FURTHER INFORMATION CONTACT: Michael Thabault, Deputy Assistant
Field Supervisor, U.S. Fish and Wildlife Service (see ADDRESSES
section) (telephone 916-979-2710).
SUPPLEMENTARY INFORMATION:
Background
As used in this rule, the term ``Delta'' refers to all tidal waters
contained within the legal definition of the San Francisco Bay-
Sacramento-San Joaquin River Delta, as delineated by section 12220 of
the State of California's Water Code. Generally, the Delta is contained
within a triangular area that extends south from the City of Sacramento
to the confluence of the Stanislaus and San Joaquin rivers at the
southeast corner and Chipps Island in Suisun Bay. The term ``Estuary,''
as used in this rule, refers to tidal waters contained in the
Sacramento and San Joaquin rivers, the Delta, and San Pablo and San
Francisco bays. ``Export facilities,'' as used in this rule, refer to
the Central Valley Project and State Water Project water export
facilities in the South Delta.
Sacramento splittail were first described in 1854 by W.O. Ayres as
Leuciscus macrolepidotus and by S.F. Baird and C. Girard as
Pogonichthys inaeqilobus. Although Ayres' species description is
accepted, the species was assigned to the genus Pogonichthys in
recognition of the distinctive characteristics exhibited by the two
California splittail species P. ciscoides and P. macrolepidotus
(Hopkirk 1973). Pogonichthys ciscoides, endemic to Clear Lake, Lake
County, California, has been extinct since the early 1970s. The
Sacramento splittail (hereafter splittail) represents the only existing
species in its genus in California.
The name splittail refers to the distinctive tail of the fish.
Pogon-ichthys means bearded fish, referring to the small barbels
(whisker-like sensory organs) on the mouth of the fish, unusual in
North American cyprinids. Macro-lepidotus means large-scaled. The
splittail is a large cyprinid fish that can exceed 40 centimeters (cm)
(16 inches (in)) in length (Moyle 1976). Adults are characterized by an
elongated body, distinct nuchal hump (on the back of the neck), and
small, blunt head, usually with barbels at the corners of the slightly
subterminal mouth. The enlarged dorsal lobe of the caudal fin
distinguishes the splittail from other minnows in the Central Valley of
California. Splittail are dull, silvery-gold on the sides and olive-
gray dorsally. During spawning season, pectoral, pelvic, and caudal
(tail) fins are tinged with an orange-red color. Males develop small
white nuptial tubercles on the head. Breeding tubercles (nodules) also
appear on the base of the fins (Moyle in prep).
Splittail are native to California's Central Valley, where they
were once widely distributed (Moyle 1976). Historically, splittail were
found as far north as Redding on the Sacramento River (at the Battle
Creek Fish Hatchery in Shasta County), as far south as the present-day
site of Friant Dam on the San Joaquin River, and up the tributaries of
the Sacramento River as far as the current Oroville Dam site on the
Feather River and Folsom Dam site on the American River (Rutter 1908).
Recreational anglers in Sacramento reported catches of 50 or more
splittail per day prior to the damming of these rivers (Caywood 1974).
Splittail were captured in the past in southern San Francisco Bay and
at the mouth of Coyote Creek in Santa Clara County, but they are no
longer present there (Moyle in prep). The species was part of the
Central Valley Native American diet (Caywood 1974).
In recent times, dams and diversions have increasingly prevented
splittail from upstream access to the large rivers, and the species is
now restricted to a small portion of its former range (Moyle and
Yoshiyama 1992). However, during wet years, they migrate up the
Sacramento River as far as the Red Bluff diversion dam in Tehama
County, and into the lowermost reaches of the Feather and American
rivers (Moyle in prep, Jones and Stokes 1993, Charles Hanson, State
Water Contractors, in litt. 1993). Small numbers of splittail have
recently been found in the upper Sacramento and San Joaquin rivers and
their tributaries (Baxter 1995). Recent surveys of San Joaquin Valley
streams found splittail in the San Joaquin River below its confluence
with the Merced River, mainly following wet winters (Moyle in prep).
Splittail have also been recorded using the Sutter and Yolo bypasses
for spawning areas during wet winters (Sommer et al. 1997). Successful
spawning has been recorded in the lower Tuolumne River during wet years
in the 1980s, as well as in 1995. Both adults and juveniles were
observed at Modesto, 11 kilometers (km) (6.6 miles (mi)) upriver from
the mouth of the river (Moyle in prep). However, all of the sightings
reported above were during wet years when splittail were able to
exploit more spawning habitat. Except for very wet years, the species
is for the most part now confined to the Delta, Suisun Bay, Suisun
Marsh, and Napa Marsh. In the Delta, they are most abundant in the
north and west portions when populations are low, but are more evenly
distributed throughout the Delta following years of successful
reproduction (Sommer et al. 1997).
Splittail are relatively long-lived, frequently reaching 5 to 7
years of age. An analysis of hard parts of the splittail indicate that
larger fish may be 8 to 10
[[Page 5964]]
years old (Moyle in prep). Females are highly fecund, with the largest
females producing over 250,000 eggs (Daniels and Moyle 1983).
Populations fluctuate annually depending on spawning success, which is
highly correlated with freshwater outflow and the availability of
shallow-water habitat with submerged vegetation (Daniels and Moyle
1983). Fish usually reach sexual maturity by the end of their second
year. The onset of spawning is associated with rising water levels,
increasing water temperatures, and increasing day length. Peak spawning
occurs from the months of March through May, although records of
spawning exist for late January to early July (Wang 1986). In some
years, most spawning may take place within a limited period of time.
For instance, in 1995, a year of extraordinarily successful spawning,
most splittail spawned over a short period in April, even though larval
splittail were captured from February through early July (Moyle in
prep). Within each spawning season older fish reproduce first, followed
by younger individuals (Caywood 1974). Spawning occurs over flooded
vegetation in tidal freshwater and euryhaline habitats of estuarine
marshes and sloughs and slow-moving reaches of large rivers. Larvae
remain in shallow, weedy areas close to spawning sites for 10 to 14
days and move into deeper water as they mature and swimming ability
increases (Wang 1986 and Sommer et al. 1997).
Splittail are benthic (bottom) foragers. In Suisun Marsh, they feed
primarily on opossum shrimp (Neomysis mercedis, and presumably, the
exotic Acanthomysis spp. as well), benthic amphipods (Corophium), and
harpactacoid copepods, although detrital (non-living and detached
organic) material makes up a large percentage of their stomach contents
(Daniels and Moyle 1983). In the Delta, clams, crustaceans, insect
larvae, and other invertebrates also are found in the diet. Predators
include striped bass (Morone saxatilis) and other piscivores (Moyle
1976).
In recent years, splittail have been found most often in slow
moving sections of rivers and sloughs and dead-end sloughs (Moyle et
al. 1982, Daniels and Moyle 1983). Reports from the 1950s, however,
mention Sacramento River spawning migrations and catches of splittail
during fast tides in Suisun Bay (Caywood 1974). Because they require
flooded vegetation for spawning and rearing, splittail are frequently
found in areas subject to flooding. Historically, the major flood
basins distributed throughout the Sacramento and San Joaquin valleys
provided spawning and rearing habitat. These flood basins have all been
reclaimed or modified for flood control purposes (e.g., Yolo and Sutter
bypasses). Although primarily a freshwater species, splittail can
tolerate salinities as high as 10 to 18 parts per thousand (ppt) (Moyle
1976, Moyle and Yoshiyama 1992). California Department of Fish and Game
(CDFG) survey data from 1979 through 1994 indicate that the highest
abundances occurred in shallow areas of Suisun and Grizzly bays.
Recent research indicates that splittail will use the Yolo and
Sutter bypasses during the winter and spring months for foraging and
spawning (Sommer et al. 1997). However, the Yolo Bypass may only be
used by splittail during wet winters, when water from the Sacramento
River over-tops the Fremont Weir and spills over the Sacramento Weir
into the Bypass. In 1998, the Yolo and Sutter bypasses provided good
habitat for fish, particularly splittail, when they were flooded for
several weeks in March and April. In order to provide spawning habitat
for splittail, water must remain on the bypasses until fish have
completed spawning, and larvae are able to swim out on their own,
during the draining process.
The decline in splittail abundance has taken place during a period
of increased human-induced changes to the seasonal hydrology of the
Delta, especially the increased exports of freshwater. These changes
include alterations in the temporal, spatial, and relative ratios of
water diverted from the system. These hydrological effects, coupled
with severe drought years, introduced aquatic species, the loss of
shallow-water habitat to reclamation activities, and other human-caused
actions, have reduced the species' capacity to recover from natural
seasonal fluctuations in hydrology for which it was adapted.
Analyses of survey data collected from 1967 to 1993 (Meng 1993,
Meng and Moyle 1995) and data from 1967 to 1997 by Service, CDFG, and
University of California at Davis biologists from several different
studies indicate the following results--(1) Overall, splittail
abundance indices have declined. Meng and Moyle (1995) demonstrated
that on average, splittail have declined in abundance by 60 percent
through 1993. The CDFG updated these data to include the most current
data available and provided to the Service. The CDFG calculated the
data using the updated information. The results were similar. These
updated data demonstrate that on average, splittail have declined
significantly in abundance by 50 percent since 1984. The greatest
declines (over 80 percent) were found from studies that sampled the
shallow Suisun Bay area, the center of the range of the species (Meng
and Moyle 1995). The updated information also show a significant
decline (43 percent) for the studies that sampled the shallow Suisun
Bay area. A study that began in 1980 in the lower Estuary, at the
outermost edge of splittail range, found the lowest percent decline (20
percent) (CDFG unpublished data) through 1993. The analysis completed
on the updated data also showed the smallest decline for this study (6
percent). The number of splittail young taken at State and Federal
pumping facilities (measured as number of individuals per acre-foot of
water pumped), as of 1993, had declined 64 percent since 1984. With the
updated data, the number of splittail young taken at State and Federal
pumping facilities demonstrated a 97 percent increase. This percent
increase is due to the unusually high salvage that occurred during
1995.
We estimate splittail populations to be 35 to 60 percent of what
they were in the 1940s, and these estimates may be conservative (Moyle
in prep). CDFG midwater trawl data indicate a decline from the mid-
1960s to the late 1970s, followed by a resurgence, with yearly
fluctuations, through the mid-1980s. From the mid-1980s through 1994,
splittail numbers have declined in the Delta, with some small increases
in various years. This decline is also demonstrated in the updated CDFG
data.
(2) Overall splittail abundances vary widely among years. Sommer et
al. 1997 also found that splittail recruitment success fluctuates
widely from year to year and over long periods of time. During dry
years abundance is typically low. During the dry years of 1980, 1984,
1987, and 1988 through 1992, splittail abundance indices for young-of-
the-year were low, indicating poor spawning success. Additionally, all
year class abundances were low during these years. In 1994, the fourth
driest year on record, all splittail indices were extremely low.
We believe wet years provide essential habitat for splittail and
allow populations to rebound from dry years. Successful reproduction in
splittail is often highly correlated with wet years. Large pulses of
young fish were observed in wet years 1982, 1983, 1986, and 1995. In
1995, one of the wettest years in recent history, an increase in all
indices was recorded, as in 1986, which was another wet year following
a dry year. However, young of the year taken per unit effort (for
example, either the number of fish per net that is towed or
[[Page 5965]]
the number of fish per volume of water sampled) has actually declined
in wet years, steadily from a high of 12.3 in 1978 to 0.3 in 1993. The
updated data from CDFG demonstrate this same decline in wet years, from
37.3 in 1978 to 0.6 in 1993. The abundance indices of splittail during
the years of 1995, 1996, and 1997 were 44.5, 2.1, and 2.6,
respectively. Year 1995 was a very wet year and splittail abundances
were high. Years 1996 and 1997 were wet years, yet abundance indices
were low. However, overall splittail declines remain high (82 percent/
43 percent with updated data) in the shallow-water Suisun Bay area, the
center of its distribution.
We believe high abundance indices in 1995 are an artifact of the
highly unusual hydrological conditions that occurred. Therefore, we
also calculated all of the percent declines, as stated above, without
the 1995 abundance indices in the analysis. The overall decline is 67
percent. The decline from the studies in the shallow Suisun Bay area
without 1995 is 80 percent. For the study in the lower Estuary, the
decline is 39 percent. The salvage data collected at both the State and
Federal pumping facilities demonstrate a 22 percent decline. Other than
1995, the salvage data include 1996 and 1997.
(3) A strong relationship exists between young-of-the-year
abundance and outflow (i.e., river outflow into San Francisco Bay after
water exports are removed). As outflow increases, annual abundance of
young-of-the-year splittail increases. Changes in outflow explain 55 to
72 percent of the changes seen in young-of-the-year splittail
abundance, depending on which survey data are analyzed.
(4) Splittail are most abundant in shallow areas of Suisun and
Grizzly bays where they generally prefer low-salinity habitats.
Salinities in Suisun and Grizzly bays increase when, as a result of
water exports or drought conditions, the mixing zone (the freshwater-
saltwater interface) shifts upstream.
(5) Concentration of splittail in shallow areas suggests that they
are particularly vulnerable to reclamation activities, such as
dredging, diking, and filling of wetlands.
The above data indicate that splittail abundances vary widely in
response to environmental conditions, but the general population
numbers are declining. The following are some reasons why the species
is in decline. The splittail is primarily threatened by the altered
hydraulics and reduced Delta outflow caused by the export of freshwater
from the Sacramento and San Joaquin rivers through operation of the
State and Federal water projects. These operations include not only the
export of water from the Delta but also diversion of water to storage
during periods of high run-off, which reduce instream flows and
available submerged aquatic habitat for spawning and rearing.
Additional threats to this species include--
(1) Direct and indirect mortality at power plants and in-Delta
water diversion sites;
(2) Reduced river flows and changes in the seasonal patterns of
flows in the Sacramento and San Joaquin rivers and their tributaries;
(3) The loss of spawning and nursery habitat as a consequence of
draining and diking for agriculture;
(4) The loss of shallow-water habitat due to levee slope
protection, marina construction, and other bank oriented construction
activities;
(5) The reduction in the availability of highly productive
brackish-water habitat;
(6) The presence of toxic substances, especially agricultural and
industrial chemicals and heavy metals in their aquatic habitat;
(7) Human and natural disturbance of the food web through altered
hydrology and introduction of exotic species;
(8) Flood control operations that strand eggs, larvae, juveniles,
and adults;
(9) The increase in severity of these effects by six years of
drought; and
(10) Entrainment (pulling) of fish through unscreened or
inadequately screened municipal and agricultural diversions.
Previous Federal Action
We included the Sacramento splittail as a category 2 candidate
species for possible future listing as endangered or threatened in the
January 6, 1989, Animal Notice of Review (54 FR 554). Category 2
candidates were defined as those species for which information in our
possession indicated that proposing to list as endangered or threatened
was possibly appropriate, but for which conclusive data on biological
vulnerability and threats were not currently available to support
proposed rules. We discontinued the use of multiple candidate
categories on February 28, 1996 (61 FR 7596), and species meeting the
definition of the former category 2 are no longer considered
candidates.
On November 5, 1992, we received a petition from Mr. Gregory A.
Thomas of the Natural Heritage Institute to add the Sacramento
splittail to the List of Endangered and Threatened Wildlife and to
designate critical habitat for this species in the Sacramento and San
Joaquin rivers and associated estuary. Mr. Thomas identified eight
organizations as co-petitioners, including the American Fisheries
Society, the Bay Institute of San Francisco, the Natural Heritage
Institute, the Planning and Conservation League, Save San Francisco Bay
Association, Friends of the River, the San Francisco Baykeeper, and the
Sierra Club. We published a 90-day finding on July 6, 1993 (58 FR
36184), that the petition presented substantial information indicating
that the requested action may be warranted. We initiated a status
review and analyzed available data on this species (Meng 1993).
On January 6, 1994, we published a proposed rule to list the
splittail as a threatened species and requested public comment (59 FR
862). The proposed rule constituted a 12-month finding that the
petitioned action was warranted, in accordance with section 4(b)(3)(B)
of the Act.
On January 10, 1995, we published in the Federal Register (60 FR
2638) a notice of a 6-month extension to make a final listing
determination and reopened a 45-day public comment period on the
proposed rule to list the splittail. The basis for this extension was
to address differences of scientific opinion concerning the status of
splittail upstream of the Delta, especially the existence of a resident
population upstream of the Delta. In April 1995, subsequent to the
close of the extension period, a moratorium on the processing of all
final listing proposals was established by Congress in Public Law 104-
6. The moratorium was lifted on April 26, 1996. As mandated by the
moratorium, we conducted no actions to finalize the proposed rule
during the period April 1995 to April 1996.
As described in detail below, we reopened the comment period on May
18, 1998. We solicited the latest information regarding the abundance
and distribution of the species. Additionally, we requested comments
concerning the publication, ``Resilience of Splittail in the
Sacramento-San Joaquin Estuary'' (Sommer et al. 1997).
The processing of this final rule follows our final listing
priority guidance for fiscal years 1998 and 1999 published in the
Federal Register on May 8, 1998 (63 FR 25502). The guidance clarifies
the order in which we will process rulemakings giving highest priority
(Tier 1) to processing emergency rules to add species to the Lists of
Endangered and Threatened Wildlife and Plants; second priority (Tier 2)
to processing final determinations on proposals to add
[[Page 5966]]
species to the lists, processing new listing proposals, processing
administrative findings on petitions (to add species to the lists,
delist species, or reclassify listed species), and processing a limited
number of proposed and final rules to delist or reclassify species; and
third priority (Tier 3) to processing proposed and final rules
designating critical habitat. Processing of this final rule is a Tier 2
action.
Summary of Comments and Recommendations
In the January 6, 1994, proposed rule (59 FR 862), we requested all
interested parties to submit factual reports or information, that might
contribute to the development of a final rule. We contacted State
agencies, county governments, Federal agencies, scientific
organizations, and other interested parties and requested comments. We
held public hearings on the proposed splittail listing in conjunction
with hearings on two other proposed Federal actions, the designation of
critical habitat for delta smelt (Hypomesus transpacificus) (59 FR
852), and the United States Environmental Protection Agency's (USEPA's)
water quality standards for the Estuary (59 FR 810). We published
newspaper notices of the public hearings on February 4, 1994, in the
Sacramento Bee, Fresno Bee, Los Angeles Times, and San Francisco
Chronicle, all of which invited general public comment. We held public
hearings on February 23, 1994, in Fresno; on February 24, 1994, in
Sacramento; on February 25, 1994, in San Francisco; and on February 28,
1994, in Irvine. At each meeting, we took testimony from 1 p.m. to 4
p.m. and 6 p.m. to 8 p.m.
During the 3-month comment period from January 6 to March 7, 1994,
we received comments (i.e., letters and oral testimony) from 133
individuals, organizations, or government agencies. Many of these
comments were given at joint public hearings for the combined Federal
rulemaking package for the Sacramento-San Joaquin Delta (including the
proposal to list the Sacramento splittail, the proposal to designate
critical habitat for the delta smelt, and final water quality standards
for the Delta being proposed by the USEPA). Only 13 of the 133
commenters addressed the proposed rule to list the Sacramento
splittail. Four of the 13 commenters that specifically addressed the
proposed rule to list the Sacramento splittail provided oral testimony
at the public hearings. Of the 13 commenters mentioned above, nine
supported the listing of the splittail, two opposed the listing, and
others provided comments considered as neutral. Five conservation
organizations (or branches thereof), one sport fishing organization,
two interested parties, and a Federal agency (the Bureau of Reclamation
(BOR)) supported the proposed listing. The California Department of
Water Resources (DWR) and the State Water Contractors opposed the
proposed listing. We received no additional expert opinions from
independent specialists concerning pertinent scientific or commercial
data about the splittail.
On August 4, 1994, we received a letter dated August 3, 1994, from
the State Water Contractors requesting a 6-month extension on the
listing determination. The reasons provided in the request for
extension were the same as those submitted during the public comment
period, addressed below.
We granted a 6-month extension to address the status of splittail
upstream of the Delta, and the importance of any such splittail to the
population as a whole. Therefore, we reopened the public comment period
for 45 days, beginning January 10, 1995, and ending February 24, 1995.
During this second comment period we received one additional comment
letter that opposed the listing of the splittail. The comment letter
addressed this issue in part.
On March 19 and March 20, 1998, the DWR and the State Water
Contractors, respectively, requested the comment period be reopened.
The basis of this request was that substantial data had been collected
since 1995 regarding the abundance and distribution of the splittail.
We believe that consideration of this and any new information is
significant to the final determination of the status of the Sacramento
splittail. For this reason, we sought information concerning abundance
and distribution data for this species from 1995-1997. Specifically, we
sought comments regarding information presented in the publication,
``Resilience of Splittail in the Sacramento-San Joaquin Estuary''
(Sommer et al. 1997), and how the results affect our recommendation for
listing the Sacramento splittail as a threatened species. The comment
period was opened on May 18, 1998, and closed on July 17, 1998. We
received comments from eight respondents, whose comments are summarized
below.
The written comments and oral statements, questioning or opposing
the listing of the splittail, or otherwise providing information,
obtained during the public hearings and comment periods are combined
into general issues that are summarized, discussed and responded to
below. Most of the comments supporting the listing did not provide any
additional information, so we have not prepared a discussion or
response to these comments.
Issue 1: A respondent commented that our statement about splittail
decline was based on data regarding splittail juveniles. The respondent
argued that adult splittail are abundant and that our reliance on a
limited portion of the year classes for a listing determination is
inappropriate.
Service Response: We have reviewed the seven data sets used in the
status review (Meng 1993). These data sets include--(1) a fall midwater
trawl survey in the upper Estuary by CDFG; (2) a monthly midwater and
otter trawl in the lower Estuary by CDFG (San Francisco Bay-Outflow
Study, hereafter Bay Study); (3) a monthly otter trawl survey of Suisun
Marsh (a tidal marsh next to Suisun Bay) by the University of
California; (4) a midwater trawl survey that we conducted at Chipps
Island in Suisun Bay; (5) a midwater trawl survey that we conducted in
the Sacramento River; (6) a beach seine survey that we conducted in the
Delta and Sacramento River; and (7) fish salvage data collected by CDFG
and the BOR at the State and Federal pumping facilities located in the
south Delta. The beach seine survey and Sacramento River midwater trawl
were not used in the analysis of abundance trends because several years
of data were missing. (See next comment for criteria used to identify
data sets suitable for inclusion in abundance trend analysis.) Of the
surveys that were used to establish abundance trends, ratios of young-
of-the-year to adults were approximately equal for three out of five
surveys (fall midwater trawl, Bay Study, and Suisun Marsh). Of the
remaining surveys, the Chipps Island trawl was dominated by young-of-
the-year, and fish salvage sampled five times as many young as adults.
We calculated percent declines independently for each survey. When the
two surveys dominated by young-of-the-year are removed from the
analysis, overall average percent decline remains the same. Therefore,
the contention that splittail adults are abundant, and that our
analysis relied on a particular age-class of the species, is unfounded.
Issue 2: One respondent maintained that the studies we relied on
were limited geographically (i.e., to the Estuary) and that splittail
may occupy a wider range. Conversely, another respondent commented that
the Estuary is the principal habitat of splittail and virtually all
splittail are found in the Estuary for the first 2 years of their
lives.
[[Page 5967]]
There was also disagreement about the gear types used for sampling. One
respondent held that they were not appropriate, whereas another
respondent stated that gear used by the studies, (i.e., bottom and
midwater trawls) captured all sizes of splittail. The respondent that
questioned gear suitability also commented that studies used in the
listing determination were designed to capture striped bass, were
limited in their ability to sample shallow and inshore habitats, and
that the use of the CDFG abundance index was inappropriate.
Service Response: We used several criteria to determine if a data
set could be incorporated into the analysis of trends in splittail
abundance and distribution. Data had to be collected for at least 10
consecutive years and effort had to be relatively constant or a core
data set had to be available to extract for analysis. A core data set
of at least 10 consecutive years provides the necessary information to
conduct an analysis of long term trends in abundance. One respondent
referred to the use of two data sets that sampled upstream of the
Estuary. These data sets were not included in the analysis of abundance
trends because time of year of sampling varied, sampling sites varied,
and some years of sampling were missing. These data sets were examined
however, for trends in distribution, and showed that capture of
splittail decreased as sampling was conducted further upstream from the
Estuary. One of the surveys referred to by the respondent consists of
samples taken upstream of the Delta and catches young-of-the-year
almost exclusively. Because splittail migrate upriver to spawn in the
spring (Meng and Moyle 1995), it is likely that these catches are the
offspring of splittail that reside further downstream for the remainder
of the year.
Regarding gear suitability, a respondent suggested that certain
gear used, especially tow nets and trawls, were not appropriate for
sampling splittail because of their benthic habits and preference for
shallow water. The respondent also referred to gillnetting as an
effective method for capturing splittail.
We agree that the summer townet survey is inefficient in sampling
splittail and therefore, was not included in the analysis of abundance.
However, several trawling methods were included. Meng (1993) compared
the effectiveness of three types of gear from one survey--bottom
(otter) trawls, midwater trawls, and beach seines. Bottom and midwater
trawls sampled equal proportions of all splittail year classes (i.e.,
young-of-the-year, fish 1 year or older, and fish 2 years or older).
The beach seine was selective for young-of-the-year. High catches of
young-of-the-year in midwater trawls are thought to reflect movement of
young out of near shore areas when water recedes. They are frequently
captured in channels, presumably as they move downstream (Meng and
Moyle 1995). The information outlined above suggests that regularly
repeated bottom and midwater trawls are reasonably effective for
sampling splittail and examining trends through time.
There are no long-term gillnetting data sets that meet the criteria
above for inclusion in the analysis of abundance. Furthermore,
gillnetting results in high fish mortality, and long-term sampling by
gillnet is not feasible in waters with sensitive species. Almost all
sampling techniques have biases. For the data used in the abundance
analysis, the sampling remained constant. Therefore, the biases
remained constant through time, and there was a consistent downward
trend in splittail abundance.
Most of the sampling programs in the Estuary were initiated to
track changes in striped bass or salmon (Oncorhynchus tshawytscha)
populations. These long term data sets can be used to assess changes in
abundance of other species as long as assumptions of sampling design
are considered. Limitations of surveys designed for striped bass or
salmon have been consistent through time. Problems with sampling
shallow and inshore habitats have not changed and should not affect
relative abundance trends. Therefore, trends or changes in splittail
abundance reflected by these surveys should be unaffected by the
various weaknesses identified by the respondent. The high correlation
between the CDFG abundance index and numbers of fish (83 percent of the
variability is explained) suggests that the index is a reasonable
estimator of population trends.
Issue 3: One respondent commented that three separate data sets,
including a gillnet survey, suggest that splittail are abundant
throughout the Delta. Another respondent countered that gillnetting
surveys cited as evidence of abundance were based on a single night of
sampling in the American River when splittail were presumably
concentrated for spawning. This respondent added that the 60 percent
decline cited in the proposed rule is remarkable because one strong
year class (such as occurred in 1983) can mask an overall decline in
this long-lived species.
Service Response: The Act requires us to base listing
determinations upon best available scientific and commercial data. The
three data sets referred to by the respondent are limited temporally
and geographically. One of the data sets referred to by the respondent
covers one night of gillnet sampling in one location. The other two
data sets refer to 2 years of sampling, separated by more than 10
years, at the Pacific Gas and Electric plant in Antioch. We considered
all available data but determined that incorporation of sporadic or
isolated sampling events was not appropriate because of problems
associated with drawing conclusions from limited or sporadic data.
Issue 4: A respondent commented that no data were provided to
support the conclusion that successful reproduction is highly
correlated with wet years.
Service Response: Regression analyses of splittail young abundance
versus spring outflow (February-May) show strong relationships. As
spring outflow increases, abundance of splittail young increases.
Changes in spring outflow explained varying percentages of changes in
abundance of splittail young and ranged from 55 to 72 percent,
depending on which survey data were analyzed (Meng and Moyle 1995). All
of the regression analyses were significant (probability values ranged
from less than 0.0001 to 0.0025) (Meng and Moyle 1995). This is a
strong correlation between successful reproduction and wet years. The
low and high abundance indices of juvenile abundance from 1994 and
1995, respectively, is consistent with this analysis.
Issue 5: One respondent commented that the data we used to
determine the decline of splittail was biased by the fact that the time
period used to determine pre-decline and post-decline was heavily
weighted with wet years in the pre-decline period, thereby biasing the
analysis.
Service Response: We analyzed only wet years to determine if there
had been a decline within that year type. That analysis indicated that
even in wet years, when one would anticipate substantially higher
recruitment, there had been an overall decline in splittail abundance.
Young-of-the-year abundance declined steadily in the annual Chipps
Island trawl in wet years from 1978 to 1993. Abundance in 1993 was less
than 3 percent of what it was in 1978. Abundance per unit effort was
approximately 12.3 in 1978, 8.1 in 1982, 2.0 in 1983, 1.3 in 1986 and
less than 0.3 in 1993. This first analysis was done using a catch-per-
tow analysis. The second analysis of splittail abundance using a
different analytical method that was based on a catch-per-volume of
[[Page 5968]]
water sampled yields a similar result. The volumetric methodology
yields a catch per unit effort (CPUE) at the Chipps Island trawl site
of 2.6 in 1978, 0.97 in 1982, 0.77 in 1983, 0.73 in 1986, and 0.21 in
1993. These two analyses show that there is an overall reduction in
abundance that is not solely a result of drought conditions. Using the
second analytical method yields a CPUE for 1995 and 1996 of 2.1 and
0.63 respectively, which were both wet years. If there were a stable
number of sexually mature fish throughout the period of decline, one
would expect similar reproduction in both years. However, there was a
substantial decline from 1995 to 1996, which may indicate that there
were not as many adult fish, reflected by the lower CPUE in 1996.
Issue 6: One respondent commented that there is no evidence to
support the statement that lower numbers of splittail young-of-the-year
during the drought may affect the stock's ability to recover.
Service Response: Our status report (Meng 1993) and the proposed
rule (59 FR 862) indicated that wet years are required for splittail
recruitment. However, as previously discussed in the analysis of only
wet years, young-of-the-year abundance has declined during these years.
Because splittail live 5 to 7 years and rely on wet years for strong
year classes, a prolonged drought, such as the recent 6-year drought,
may provide little recruitment opportunities. The steady decline in
young-of-the-year abundance in the Chipps Island trawl, combined with a
5 to 7 year life span and reliance on wet years for strong year
classes, suggests that lower numbers of splittail young during the
drought will reduce the number of adult fish in subsequent wet years.
This overall decline in splittail abundance, even during wet years, may
affect the ability of the species to recover.
Issue 7: A respondent commented that the drought, not exports, was
responsible for the recent decline in splittail abundance indices.
Service Response: Water exports at the State and Federal pumping
facilities are not the only threat to the species related to the State
Water Project and the Central Valley Project. The State and Federal
water projects are interbasin water delivery systems that include 34
reservoirs, thousands of miles of aqueducts and canals, and large
pumping facilities in the south Delta. Storage in reservoirs and
conveyance components of the projects also have substantial effects on
the splittail. Outflow conditions that inundate large vegetated areas
are affected by pumping because increases in pumping must be supported,
at some point, by increases in diversions to State and Federal
reservoirs. Most rainfall occurs during winter and spring in
California, and high spring flows are augmented by snow melt.
Historically, high spring flows provided flooded areas and shallows for
fish spawning and rearing. Construction of upstream reservoirs allowed
large amounts of these high spring flows to be diverted to storage for
later release. Diversion of water to storage dampens peak spring flows
beneficial to splittail spawning success and provides water for pumping
when flows to the Estuary decrease.
Since 1983, the proportion of water exported from the Delta during
October through March has been higher than in earlier years (Moyle et
al. 1992). Changes in timing and amounts of exports, as well as
operations of upstream water storage facilities, affect fish migration
and spawning habits. Dampening of peak spring flows by springtime
diversions to storage to replenish depleted reservoirs has deleterious
effects on estuarine species such as splittail, which evolved in a
system with periodic spring flooding.
As previously discussed, in wet years when fish production is
generally high, large segments of the juvenile population are
vulnerable to export facilities both directly and indirectly through
entrainment and altered Delta hydrology. This vulnerability is
reflected in wet year abundance indices. The adverse effects of the
pumps in wet years combined with poor recruitment during dry years
exacerbates the population demographic outlook for the splittail.
Issue 8: A respondent commented that calculations in the status
report were incorrect. This comment targeted a reference in the
proposed rule regarding the abundance of splittail in the Suisun Bay
area.
Service Response: This comment was apparently based on a
misinterpretation of data included in the status report. The respondent
incorrectly assumed that the top half of Figure 13 in the status report
supported statements in the text regarding abundance of splittail in
Suisun Bay. However, this portion of Figure 13 was intended to indicate
the approximate locations and effort of the different surveys used for
the status report. The bottom half of Figure 13 was intended to support
statements about abundance of splittail in the Suisun Bay area. The
respondent acknowledged the high catches in Suisun and Grizzly bays
represented in the bottom of Figure 13. Furthermore, two CDFG surveys
indicate that abundance of splittail captured by each survey,
comprising 72 and 56 percent of the catch, respectively, was taken in
those areas (Meng and Moyle 1995).
The respondent also stated that values used to construct the top
half of Figure 13 were incorrect. The respondent recalculated the
values, but used incomplete data sets (Chipps Island trawl) or
incorrect data sets (Suisun Marsh). Furthermore, the respondent
referred to Bay Study beach seine data that were not included in the
analysis and constructed a table of values without using the
appropriate scale included on the original figure. The respondent
stated that adding ratios, as in Figure 13, violates basic laws of
algebra. However, the figure was not intended to show the sums of
catches in different areas. The figure was intended to illustrate the
relative contributions of different surveys in different areas. The top
half of Figure 13 has been removed from the status report because it
was confusing and did not contribute to the analysis.
Issue 9: Two respondents commented that outflow conditions that
inundate large vegetated areas and result in favorable spawning
conditions are largely unaffected by diversion and export capabilities
of the State and Federal water projects.
Service Response: Evidence offered to support this comment is a
correlation analysis performed by DWR indicating that there is a
positive relationship between the number of days that the Yolo and
Sutter bypasses are flooded and splittail young abundance. The Yolo and
Sutter bypasses are flood control structures that bypass flows 96 and
128 km (60 and 79 mi) upstream of the confluence of the Sacramento and
San Joaquin rivers respectively. Because high outflows and number of
days the bypasses are flooded are strongly correlated, it is difficult
to isolate flooding of these specific areas as the most important
factor influencing splittail abundance. Although flooding of the
bypasses may result in favorable spawning conditions, young located in
the bypasses are likely to experience high mortality because they
become trapped in depressions and agricultural drainage canals when
water recedes (Jones and Stokes 1993).
Issue 10: One respondent commented that the effects of entrainment
on splittail are questionable. The respondent questioned statements in
the proposed rule that splittail may be more vulnerable to the effects
of entrainment in water project facilities in dry years. The respondent
based the argument on strong relationships between splittail abundance
and losses to project operations.
[[Page 5969]]
Service Response: An entrainment index was developed (a ratio of
indices from two surveys, i.e., salvage of entrained fish at water
project facilities divided by the fall midwater trawl index) that
demonstrated entrainment of splittail young was higher in wet years. We
acknowledge that based on the two surveys comprising the entrainment
index, entrainment of splittail appears to occur in proportion to
abundance, that is, entrainment is higher in wet years. Because
splittail abundance relies on high levels of recruitment in wet years,
taking more splittail in wet years does not remove the threat of
entrainment in water project facilities from the population. In the
early 1980s, hundreds of thousands of splittail young were salvaged
monthly by the State export facility alone (this number has decreased
as abundance has decreased). Since splittail abundance relies on strong
year classes in wet years to support the population during poor
environmental conditions, entrainment of large numbers of young, even
in proportion to abundance, remains a threat.
With the exception of the Bay Study, all 1995 indices were less
than historic wet year indices or, in the case of the Fall-midwater
Trawl survey, not as high as pre-decline wet-year indices. However, the
combined CVP/SWP salvage was more than double any previous year's
salvage index, wet or dry (approximately 8 million young-of-the-year
fish for the entire year versus less than 4 million young-of-the-year
fish in 1986, which was the next highest entrainment index on record).
This suggests that during 1995, the CVP/SWP export facilities in the
Delta may have actually entrained fish in greater proportion to
abundance than in past years.
Issue 11: One respondent questioned the mechanism by which shallow
water habitat has been lost in recent years. The respondent stated that
a significant amount of marsh habitat was diked and drained in the
first part of this century, but relatively little reclamation of
wetlands occurred within the last decade.
Service Response: We acknowledge that most wetland losses in the
Estuary occurred in the first part of this century. The recent loss of
shallow water habitat in the Estuary is due to increasing salinities in
Suisun Bay, a shallow area. Suisun Bay was historically fresh to
brackish much of the year and important for the rearing of Delta
fishes. Increasing salinities in the Suisun Bay area due to decreases
in outflow have reduced available shallow water habitat for splittail,
primarily a freshwater species. Increasing salinities in this area have
also decreased Neomysis mercedis production, a primary splittail food
and a factor cited by the respondent as being a possible cause of
decline.
Issue 12: One respondent commented that the possible effects of
predators and competitors deserves greater consideration. The
respondent referred to three introduced species that have experienced
population explosions during the same period that splittail declined,
two gobies and one atherinid, the inland silverside (Menidia
beryllina).
Service Response: We acknowledge that the three introduced species
and the splittail may occupy similar habitats. However, these
introduced species rarely exceed 8 cm (3.4 in) in length as adults,
one-fifth the size of splittail. Thus, direct predation by the
introduced species on splittail is unlikely. It is also unlikely that
adults of the introduced species consume splittail young because of
differences in spawning sites, that is, many splittail spawn upstream
of and in the upper portions of the Estuary. Furthermore, competition
for food or resources (such as spawning sites) is unlikely and would be
difficult to extract from the wide array of factors that may affect
splittail. The introduced species most likely to affect splittail is
striped bass, which is known to favor splittail for food (see Factor C
in the ``Summary of Factors Affecting the Species'' section). Splittail
and striped bass, however, have coexisted for decades in the Estuary.
Recent declines in splittail have occurred in concert with striped bass
declines.
Issue 13: A respondent stated that the reason for our decision not
to designate critical habitat is not entirely clear from the proposed
rule. Further, the respondent expressed concern that we provide
splittail with a level of protection afforded by listing the species as
threatened pursuant to the Act rather than addressing threats to the
species in recovery work that is already being undertaken for Delta
fisheries in general.
Service Response: We clarify the decision not to designate critical
habitat in the ``Critical Habitat'' section of this rule. Based on our
analysis of threats, including the lack of recovery efforts implemented
and regulatory controls, we determined threatened status for the
splittail in this rule. The Sacramento San-Joaquin Delta Native Fishes
Recovery Plan (U.S. Fish and Wildlife Service 1996) discusses threats
and needed restoration actions in detail.
Issue 14: One respondent questioned the need to list splittail with
current protections in place for delta smelt and proposed USEPA water
quality standards for the Estuary (59 FR 810). The respondent stated
that increases in water demand for splittail would affect the
predictability of water supplies for other users.
Service Response: In determining to list the splittail, we
considered the effects of the listing of delta smelt and designation of
critical habitat for the delta smelt (60 FR 4664) as well as
implementation of the State's Water Quality Control Plan (WQCP). We
believe that the life history and habitat requirements of splittail
will not be satisfied by these actions.
The life history characteristics and habitat usage of splittail
differ from those of delta smelt. Splittail migrate farther upstream to
spawn in the Sacramento and San Joaquin rivers and their tributaries
than do delta smelt. Consequently, protections for this species will
not overlap completely with those needed for splittail. Splittail also
differ from the already listed species in their habitat usage. Because
splittail prefer shallow water, with emergent vegetation, they are
particularly threatened by reclamation, dredging, and development
activities in those habitat types. Finally, because splittail are long-
lived and spend much of their lives in the Estuary, contaminants pose a
greater threat to this species than to delta smelt.
As described in detail under Factor D of the ``Summary of Factors
Affecting the Species'' section, water quality objectives developed by
the SWRCB could benefit splittail. In 1995, the SWRCB adopted a WQCP
for the San Francisco Bay/Sacramento-San Joaquin Delta Estuary (95-1WR,
May 1995) to protect water quality and to control water resources that
affect the beneficial uses of the Bay-Delta Estuary. As an interim
implementation measure, the SWRCB adopted Water Rights Order 95-6,
which relies on the CVP and SWP to comply with the new standards. The
flows identified in the water rights decision 95-6 that were
implemented through section 7 of the Act with the BOR and USEPA were
intended to benefit splittail as well as delta smelt. These flows would
provide spawning flows in tributaries as well as habitat and transport
flows in and through the Delta if the WQCP is fully implemented.
However, this WQCP has not proven entirely adequate to protect against
the effects of entrainment both at the CVP/SWP export facilities and
other agricultural and municipal water diversions. For example,
operations of the CVP and SWP facilities were altered only slightly for
a 3-day period of time
[[Page 5970]]
in June of 1995 to reduce the effects of salvage on out-migrating
juvenile splittail. This action was taken after almost 6 million
juvenile splittail were entrained and salvaged at the State and Federal
export facilities in the spring of 1995. Between the middle of April
and the end of June, over 6.3 million juvenile fish were salvaged at
these facilities. Based on data that we received from ongoing
monitoring programs during 1995, the vast majority of the fish were
probably of San Joaquin River origin, where substantial spawning has
not occurred in over a decade. The monitoring programs showed little
juvenile production and out migration from the Sacramento River. Even
if a population exists upstream of the Delta, State and Federal project
operations have done little, even in this new regulatory environment,
to protect against entrainment of those fish. Additionally, exports
during the out migration period change the behavioral cues and
hydrology that may affect the ability of juveniles to move out of the
Delta.
Moreover, the SWRCB has not completed the development of a long
term implementation plan for the 1995 WQCP. The SWRCB has prepared a
draft Environmental Impact Statement that evaluates a range of
potential alternative actions so that responsibility to meet the water
quality objectives in the 1995 WQCP can be allocated. The SWRCB is
currently holding hearings to obtain all necessary information so that
an implementation plan can be developed. An experimental proposal has
been developed by stakeholders on the San Joaquin River along with the
Service and other State and Federal agencies. The proposal, known as
the Vernalis Adaptive Management Plan (VAMP), would evaluate the
effects of flow and exports on salmon, along with a barrier at the head
of Old River, for the next 12 years. It may be accepted by the SWRCB
and may provide some benefit to splittail, but full evaluation of the
benefits and impacts to the species will not occur until the experiment
is complete. We will participate in the implementation of VAMP.
Issue 15: Several respondents questioned our reliance on the
entrapment zone (the area of the Estuary where saltwater and freshwater
meet) and its importance to splittail. Another respondent questioned
our reliance on changes in salinity and shifts in the distribution of
splittail upstream concurrent with shifts in the salinity.
Service Response: We agree that there is little if any correlation
between splittail abundance and the entrapment zone. However, the
entrapment zone is an important ecological indicator. It provides an
area in the estuary that is highly productive. However, when located
upstream, the mixing zone is not as productive because it is confined
to deep river channels where the total surface area is smaller, fewer
shoal areas exist, water currents are swifter and more turbulent, and
zooplankton productivity is low.
Issue 16: One respondent commented that we could not support the
conclusion that all size classes of splittail suffer near total loss at
the export facilities due to entrainment.
Service Response: According to salvage facility personnel, juvenile
splittail may suffer up to 50 percent mortality due to salvage at the
facilities (Scott Barrow, CDFG, pers. comm. 1995). Other forms of
mortality exist due to screen efficiency, predation, and impingement
that are not quantifiable at this time. We have modified the rule
accordingly.
Issue 17: Several commenters raised the issue of peer review of the
data and conclusions. One commenter also stated that there was no
public access to the data.
Service Response: The proposed rule to list the splittail was
published on January 6, 1994, prior to the time that the interagency
policy on peer review (59 FR 126) was made effective on July 1, 1994.
Despite this, we sent data used in the proposed rule to Dr. Bruce
Herbold, USEPA; Dr. Peter Moyle, University of California at Davis; and
Dr. Larry Brown, U.S. Geological Survey (USGS) for their review. None
of these reviewers provided written comments concerning the data.
Additionally, several meetings were held between the Service and CDFG's
Bay-Delta Division during the comment period to discuss the data and
methodologies used to establish trends in abundance. The CDFG did not
disagree with the data used or the methodology used in the analysis.
As described above, we reopened the comment period twice, once in
1995 and again in 1998. During the reopened comment period beginning in
January 1995, we considered a substantive issue that CDFG and others
raised during the original comment period. The subject of the
significant scientific disagreement, that resulted in reopening the
comment period, was whether a resident population of Sacramento
splittail existed in the upper rivers that was not being detected by
the current sampling methodologies. The CDFG conducted a study in the
Fall of 1994 to address this question. The results of the study were
available in February of 1995 and largely supported our listing. This
study was conducted by the CDFG under the review of an interagency
science committee (the Interagency Ecological Program). The re-opening
of the comment period in 1998 was based, in part, on information in the
peer-reviewed publication ``Resilience of Splittail in the Sacramento-
San Joaquin Estuary'' (Sommer et al. 1997).
Moreover, the status report that Meng prepared was peer reviewed
for its scientific basis. That status report was the basis of an
article in the Transactions of the American Fisheries Society, which
was again peer reviewed (Meng L. and P. Moyle, 1995). Additionally, the
final Sacramento-San Joaquin Delta Native Fishes Recovery Plan (U.S.
Fish and Wildlife Service 1996) that discussed the status of the
splittail was subject to public comment and review.
Although obtaining raw data from various agencies may have been
delayed due to quality assurance and quality control, all data was
available between the closing of the first comment period, and during
both of the reopened comment periods. Although there may be minor
differences in the final analysis contained in this final rule, these
differences do not change our conclusion regarding the status of the
species and the threats to the species.
Issue 18: The one comment received during the second comment period
suggests that there may be a resident splittail population upstream of
the Delta in the upper reaches of the mainstem rivers or their
tributaries.
Service Response: We agree that splittail do occur in the upper
reaches of the Sacramento and San Joaquin rivers in some years. While
we excluded the beach seine data sets from the analysis of abundance
(for the reasons stated in our response to Issue 2), we never
eliminated these, or other data sets, from our analysis of
distribution. The beach seine sampling collects relatively fewer fish,
on a catch-per-unit-effort basis, than do the surveys further down the
Estuary, such as the Chipps Island trawl. This sampling indicates that
the splittail, although utilizing these upstream areas, are not
utilizing them in substantial numbers, and certainly not in sufficient
numbers to constitute a population. The CDFG sponsored a special study
to try and determine if there were substantial resident populations
upstream of the Delta in 1994 (Baxter 1994). The results of this study
indicated that in 1994, the bulk of the population resided in and
around Suisun Bay, Big Break, and Grizzly Bay, which correlates to the
distribution of shallow water wetlands throughout this region.
[[Page 5971]]
Issue 19: Below we summarize comments from several respondents
concerning the Sommer et al. (1997) paper. The respondents state the
following reasons for not listing the splittail--(1) The splittail is
more widely distributed and abundant than previously thought; (2) The
splittail is a highly fecund, resilient, and long-lived species with
more than one year class spawning at one time; therefore, it can
rebound because of its high reproductive capacity; (3) The splittail's
range has not decreased dramatically; (4) The splittail is able to
endure drought conditions and rebound in wet years; (5) Splittail are
robust and can handle stress at the export facilities; and (6)
Splittail are not at risk from pumping; they are taken in relative
proportion to their abundance.
Service Response: Item 1--We disagree with the statement that the
splittail is more widely distributed and abundant than previously
thought. However, we have always asserted that in some years splittail
are found in the upper Sacramento and San Joaquin rivers. During wet
years, splittail are more widely distributed and may be abundant, due
to more available spawning habitat. For instance, the wet year of 1995
enabled splittail to use habitats that are normally unavailable to them
during normal to dry years. During 1995, the Yolo Bypass provided good
habitat for spawning splittail and splittail abundance increased. The
Bypass provided suitable spawning habitat only because it was a wet
year and the Bypass held water later in the year and for a longer
duration than is typical. Therefore, when sampling was conducted during
1995, splittail seemed to be abundant and were found in areas, like the
Yolo Bypass, that they may not normally be able to use. These managed
habitats cannot be relied upon during normal or dry years to provide
spawning habitat unless they are consistently managed for the spawning
and rearing needs of splittail. During dry years, splittail abundance
is restricted by the availability of spawning habitat.
Item 2--We agree that the data demonstrate that splittail are a
fecund (fertile) species. However, even fecund species can become low
in abundance due to poor habitat conditions for spawning, which may
occur during normal or dry years. Young-of-the-year and juvenile
survivability recruitment is important to the splittail's recovery.
Even though splittail spawn several thousand eggs, not all will reach
adulthood. Splittail need good habitat for survivability to spawning
age.
Long-lived is a relative term. Compared to an annual species such
as the delta smelt, splittail, which live for an average of 5 to 10
years, are long-lived. However, if compared to the green sturgeon,
which lives to 20 to 40 years of age, the splittail has a short life
span.
The term resilience is also a relative term. Due to the larger body
size, splittail may be more resilient than delta smelt to entrainment
or impingement, for example, but they are less resilient than larger
fish such as salmon. We agree with the statement that more than one
year class of splittail may spawn at one time. However, spawning is not
always successful. Spawning success is correlated with several factors,
including wet years, high Delta outflow, and the presence of flooded
vegetation. If these parameters are not present, then the splittail may
have low recruitment to the population during that year or years.
Item 3--We disagree with the statement that the splittail range has
not decreased dramatically. Historically, splittail were found as far
north as Redding on the Sacramento River (at the Battle Creek Fish
Hatchery in Shasta County), as far south as the present-day site of
Friant Dam on the San Joaquin River, and up the tributaries of the
Sacramento River as far as the current Oroville Dam site on the Feather
River and Folsom Dam site on the American River. Splittail were
captured in southern San Francisco Bay and at the mouth of Coyote Creek
in Santa Clara County, but they are no longer present there. The
species is, for the most part, now confined to the Delta, Suisun Bay,
Suisun Marsh, and the Napa River, reflecting a significant decrease in
their historical range. Splittail are able to use the Sutter and Yolo
bypasses only in wet years. In addition, these bypasses are managed
artificially.
Item 4--We disagree with the statement that splittail are able to
endure drought conditions and rebound in wet years. The years 1987
through 1992 were consecutive dry years and demonstrated low abundance
indices for splittail. During dry years, splittail abundance is
restricted by the availability of spawning habitat. However, 1993 was
an above normal water year and splittail abundance indices remained
low. During 1993, after the end of the dry and critically dry years of
1987 through 1992, water was diverted to fill up the reservoirs that
had been depleted during the drought. Therefore, even though 1993 was
an above normal year, the additional water was unavailable for the fish
to use.
During the wet years of 1982, 1983, 1986, and 1995, splittail
abundance indices were high for all age classes, as sampled in the fall
mid-water trawl. During the wet years of 1984, 1996, and 1997,
splittail indices were low. Therefore, if wet or above normal year
types were the controlling factor, essential habitat for splittail
would have been provided and splittail numbers should have been higher
in 1984, 1996, and 1997. These data show that splittail do not
necessarily have high abundance indices during all wet years. Even
though 1984, 1996, and 1997 were wet years, they may not have had the
appropriate hydrology, water quality, etc., to support a large spawning
class. The timing and magnitude of flow events are likely significant
parameters affecting splittail spawning success. Spring flows also have
to be of adequate duration and timing to provide the fish with flooded
vegetation for escape cover, foraging areas, etc. Weather patterns are
too unpredictable to rely on wet years for the recovery of splittail;
extended periods of drought would result in low reproduction and
population declines. (Also see the response to Issue 6).
Item 5--We agree that splittail are a robust fish. They can obtain
a size of over 40 cm total length. However, even though they are a
relatively large fish, they are still subject to stress at the water
export facilities. Eggs and larvae are still subject to entrainment and
impingement at the facilities. The largest losses at the pumping plants
occur in wet years when up to millions of splittail young are lost
during the spring months. Although splittail salvage better than the
delta smelt, which cannot be salvaged at all, recent problems at the
export facilities have reduced the salvage of all fish. New species
such as the exotic mitten crab have recently posed problems at the
export facilities. Salvage of fish was requested to be stopped until
the crab problem can be resolved.
Item 6--We disagree with the comment that splittail are not at risk
from pumping and that they are taken in proportion to their relative
abundance. Although it may appear that splittail are able to handle the
stress of salvage at the export facilities, they may not necessarily
survive after release. Better studies are needed to determine the
extent of latent mortality.
Splittail are more likely to be at risk during pumping, depending
on the water year and where the fish are distributed during spawning.
During dry years, splittail are concentrated in the few areas that have
flooded vegetation that can support spawning. Therefore,
[[Page 5972]]
most of the population may be concentrated in one part of the Delta,
potentially resulting in more take at the pumps in proportion to the
amount of fish in the system. Conversely, more splittail are taken at
the pumps during wet years because there is more habitat available for
spawning, which may result in more recruitment to that year class.
Depending on the distribution of spawning, fish may be taken in
disproportion to their overall abundance.
Issue 20: Several respondents stated that programs and agreements
like the Bay/Delta Accord, CALFED (a consortium of State and Federal
agencies convened to address water issues in California), and VAMP will
result in recovery of splittail. Therefore, there is no need to list
the species.
Service Response: We agree that the threats associated with the
degradation of the Delta may be lessened by the successful
implementation of the Bay/Delta Accord, CALFED, Central valley Project
Improvement Act (CVPIA), and VAMP. However, to date, the results of
these agreements and programs have not been quantified due to
subsequent wet years that did not require regulatory intervention for
delivery of water for fish species. At this time, it cannot be
determined whether these actions have been implemented to an extent
that will prevent the splittail from becoming endangered within the
foreseeable future.
Issue 21: A respondent stated that we failed to comply with the
Regulatory Flexibility Act and Executive Order 12630.
Service Response: The Endangered Species Act requires that listing
decisions be made solely on the basis of biological information. The
legislative history to the Endangered Species Act amendments of 1982
states:
``The Committee of Conference * * * adopted the House language
which requires the Secretary to base determinations regarding the
listing or delisting of species `solely' on the basis of the best
scientific and commercial data available to him. As noted in the House
Report, economic considerations have no relevance to determinations
regarding the status of species and the economic analysis requirements
of Executive Order 12291, and such statutes as the Regulatory
Flexibility Act and the Paperwork Reduction Act, will not apply to any
phase of the listing process.'' (H.R. Conf. Rep. No. 567, 97th Cong.,
2d Sess. 12, 19-20 (1982); S. Rep. No. 418, 97th Cong., 2d Sess. 4
(1982)).
In consultation with our Solicitor's Office, we have concluded that
the analyses required by the Regulatory Flexibility Act are not
applicable to listing determinations.
Regarding Executive Order 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, the
Attorney General has issued guidelines to the Department of Interior
(DOI) on implementation of this Executive Order. Under these
guidelines, a special rule applies when an agency within the DOI is
required by law to act without exercising its usual discretion--that
is, to act solely upon specified criteria that leave the agency no
discretion.
In this rulemaking context, we might be subject to legal challenge
if we considered or acted upon economic data. In these cases, the
Attorney General's guidelines state that Takings Implications
Assessments (TIAs) shall be prepared after, rather than before, the
agency makes the decision upon which its discretion is restricted. The
purpose of TIAs in these special circumstances is to inform policy
makers of areas where unavoidable fifth amendment taking exposures
might exist. Such TIAs shall not be considered in the making of
administrative decisions that must, by law, be made without regard to
their economic impact.
As described above, Congress required us to list species based
solely upon scientific and commercial data indicating whether or not
they are in danger of extinction. The Act does not allow us to withhold
a listing based on concerns regarding economic impact. The provisions
of the guidelines relating to nondiscretionary actions clearly are
applicable to the determination of threatened status for the Sacramento
splittail.
Summary of Factors Affecting the Species
After thorough review and consideration of all the best scientific
and commercial information available, we have determined that the
Sacramento splittail should be classified as a threatened species.
Procedures found at section 4 of the Act and regulations implementing
the listing provisions of the Act (50 CFR part 424) were followed. A
species may be determined to be endangered or threatened because of one
or more of the five factors described in section 4(a)(1). These factors
and their application to the Sacramento splittail (Pogonichthys
macrolepidotus) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. The Sacramento splittail, once
widely distributed in the Central Valley of California from Redding to
the modern-day site of Friant Dam near Fresno, is now primarily
restricted to the Estuary due to dams, diversions, dredging, and the
diking and filling of historic flood basins. Within this constricted
range, splittail have declined by about 62 percent since 1984. However,
overall percentage decline over its historical range is much greater.
Populations have fluctuated somewhat in the past, with most recruitment
taking place in wet years. In wet years since 1978, however, splittail
recruitment has declined consistently with catch-per-unit-effort of
12.3, 8.1, 2.0, 1.3, and 0.3 for 1978, 1982, 1983, 1986, and 1993,
respectively. The updated data from CDFG demonstrate the same decline
by wet years, with 37.3, 15.5, 8.9, 7.3, and 0.6 in 1993. Other wet
year data include 1995, 1996, and 1997. These indices are 44.5, 2.1,
and 2.6, respectively. However, as stated before, 1995 was a very wet
year and there was suitable spawning habitat for splittail in the
Estuary. The 1995 data point does not represent a reversal in the
decline of the species. Splittail declines are highest (82 percent/83
percent with updated data) in the shallow water Suisun Bay area, the
center of its distribution. Therefore, as stated above, wet years are
not always indicative of high abundance indices. However, the current
data do not indicate a change in this trend.
Delta water diversions and exports currently total about 9 million
acre-feet per year, but plans now being prepared could increase exports
and diversions in the future. The Federal and State water projects
presently export about 6 million acre-feet per year from the Delta when
sufficient water is available, and in-Delta agricultural uses result in
diversion of about 3 million additional acre-feet per year. We know of
21 major Central Valley Project, State Water Project, or private
organization proposals that would result in increased water exports
from the Delta, reduced water inflow to the Delta, changes in timing
and volume of Delta inflow, or increases in heavy metal contamination
of the Delta. These proposed projects or actions include but are not
limited to revisions to the Central Valley Project Operations Criteria
and Plan, Los Banos Grandes Reservoir, Los Vaqueros Reservoir, South
Delta Water Management Program, North Delta Water Management Project,
West Delta Water Management Project, Delta Wetlands Corporation Water
Storage Project, Folsom Dam Reoperation, Oroville Dam Reoperation,
Auburn Dam, Central Valley Project contract renewals and amendments
such as those on the American River that include the
[[Page 5973]]
Sacramento County water contracts, East Bay Municipal Utilities
District water contract, as well as other increases in diversions
resulting from the American River Water Forum process. Other water
contracts renewals include the Solano County Water District. Contra
Costa Water District is currently proposing to increase their
diversions for future water supply. The Central Valley Project and
State Water Project wheeling purchase agreement, reactivation of the
San Luis Drain, Stanislaus-Calaveras River Basin Water Use Program,
Suisun Marsh Project Phase Three and Four, Federal Water Project change
in diversion point, and State Water Project Pump additions. All of
these projects would impact the habitat of the splittail.
Changes in water diversions are most likely at the State Water
Project. For the most part, the Federal pumping plant has operated at
capacity for many years (pumping at rates up to 4,600 cubic feet per
second (cfs)), so increased exports at this plant are unlikely.
However, the State Water Project pumping plant and capacity of the
State Aqueduct have considerable unused capacity. The State Water
Project currently pumps at rates up to 6,400 cfs and plans to increase
pumping rates by more than 50 percent. Local private diverters are
relatively stable and export up to 5,000 cfs from about 1,800
diversions scattered throughout the Delta. The DWR (1992) reported past
and projected State Water Project deliveries from Delta sources during
the years of 1962 to 2035. In the 1980s, deliveries ranged from 1.5
million acre-feet to 2.8 million acre-feet. By 2010, deliveries of up
to 4.2 million acre-feet are planned.
Since 1983, the proportion of water exported from the Delta during
October through March has been higher than in earlier years (Moyle et
al. 1992). Changes in timing and amounts of exports affect fish
migration and spawning habits, as well as operations of upstream water
storage facilities. Dampening of peak spring flows by springtime
diversions to storage facilities to replenish depleted reservoirs has
deleterious effects on estuarine species such as the splittail, which
have evolved in a system with periodic spring flooding.
Federal and State water diversion projects in the southern Delta
export, by absolute volume, mostly Sacramento River water with some San
Joaquin River water. During periods of high export pumping and low to
moderate river flows, reaches of the San Joaquin River reverse
direction and flow upstream to the pumping plants located in the
southern Delta. When total diversion rates are high relative to Delta
outflow, the lower San Joaquin River and other channels have a net
upstream (i.e., reverse or negative) flow. Out-migrating larval and
juvenile fish of many species become disoriented due to reverse flows.
Fish, including Sacramento splittail, delta smelt, longfin smelt
(Spirinchus thaleichthys), and all runs of salmon and steelhead are
lost at pumps and to predation at various water facilities and other
diversion sites. Because data from State and Federal pumping facilities
indicate that splittail migrate upstream to spawn, positive outflows
are also important to transport splittail young downstream (Meng 1993).
In recent years, the number of days of reversed San Joaquin River
flow have increased (Moyle et al. 1992), particularly during the
February-June spawning months for splittail. Reverse flows in the San
Joaquin River may transport more splittail young towards pumping
facilities in the south Delta where the splittail are entrained by
pumps and diversions. The survival rate of splittail salvaged from
entrainment is unknown. However, salvage operations have been shown to
result in 50 percent losses of salvaged fish (Scott Barrow, DFG, pers.
comm. 1995) (see factors C and E of this section for more discussion
about entrainment and salvage).
With full implementation of the WQCP for the Sacramento-San Joaquin
Estuary (described below) we anticipate an overall reduction of the
number of days of reverse flow in the lower San Joaquin River during
the spring period. Pumping will shift from the spring period to later
in the year. This pumping will likely have to be supported by reservoir
withdrawals. Reservoir releases in the spring may not be as frequent
depending on how much space is available in the reservoirs carried over
from the previous year. Increasing demand will also require more
support from reservoirs for export, which will alter the flow patterns.
Changes in reservoir operations and ramping rates for flood control may
affect shallow water spawning habitat along river corridors and
exacerbate stranding of splittail.
Estuaries are ecosystems where the mixing zone and salinity levels
are determined by interaction of river outflow and tidal action.
Splittail are most abundant in the shallow water of Suisun Bay, which
is historically associated with the entrapment zone. The young of this
species require high zooplankton densities, which are common in the
entrapment zone. Production of zooplankton increases when the
entrapment zone occupies a large geographic area with extensive shoal
regions within the euphotic zone (depths less than 4 meters), such as
Suisun and Grizzly bays. Fall mid-water trawl survey data collected by
CDFG indicate that 72 percent of the splittail captured from 1967 to
1992 in the Estuary were taken in the shallow water areas of Suisun and
Grizzly bays (Meng 1993).
During periods of drought and increased water diversions, the
entrapment zone and associated fish populations are shifted farther
upstream in the Estuary. During years prior to 1984, the entrapment
zone was located in Suisun Bay from October through March (except in
months with exceptionally high outflows or during years of extreme
drought). From April through September, the entrapment zone usually was
located upstream in the river channels. Since 1984, with the exception
of the record 1986 flood outflows, the entrapment zone has been located
primarily in the river channels during the entire year because of
drought and increased water exports and diversions. When located
upstream, the entrapment zone is confined to deep river channels where
the total surface area is smaller, fewer shoal areas exist, water
currents are swifter and more turbulent, and zooplankton productivity
is low. In all respects, the upstream river channels are much less
favorable for rearing of splittail. Splittail declines since 1984 have
been concurrent with an increasing amount and proportion of freshwater
diversions that confine the mixing zone to narrow, deep, and less
productive channels in the lower rivers.
Recent research indicates that splittail will use the Yolo and
Sutter bypasses during the winter and spring months for foraging and
spawning (Sommer et al. 1997). The bypasses are two extensive
floodplain areas used for flood control, agriculture, and wildlife
habitat. The bypasses serve as a control outlet for the Sacramento
River, which historically flooded large areas of the adjacent valley
during high water events in the winter and spring. The water from the
Sacramento River is diverted to the bypasses through a passive system
of weirs. Water enters the Yolo Bypass from the Sacramento River via
the Fremont and Sacramento Weirs. The Sutter Bypass is inundated
through the Tisdale Weir.
In 1995, the bypasses provided good habitat for fish, particularly
splittail because it was an extremely wet year and the bypasses were
flooded for several weeks in March and April. However, the bypasses do
not get flooded at all in dry and critically dry years. Therefore,
during those years,
[[Page 5974]]
when splittail would need the habitat the most, it is not provided by
the bypasses.
The Yolo Bypass is inundated whenever the Sacramento River stage at
Fremont Weir exceeds 33.5 feet. About 3/4 of the years going back to
the mid-1930s have had overflows into the Yolo Bypass. Even though the
water was high enough to overtop the Fremont Weir, the water may not
have stayed on the Bypass consistently nor long enough to benefit
splittail.
Under current water management practices, the bypasses cannot be
relied upon throughout any given spawning season to provide habitat for
splittail. As mentioned above, water is placed onto the bypasses by
overtopping of weirs along the Sacramento River. The flooding of the
bypasses is sporadic at best. The volume of water varies from year to
year as well as does the time of year when the bypasses are inundated.
The water may be placed intermittently on the bypasses, depending on
how much rainfall occurs at any given time. For instance, water has
been placed onto the Yolo Bypass as early as December and has remained
on the Bypass as late as May. Water has also been placed on the Bypass
for a short time and drained off. The water could be drained off at
some point during the season and then with more heavy rainfall, the
bypasses could become flooded again. Therefore, these systems would not
provide suitable spawning habitat consistently for splittail. Also, the
bypasses do not drain at consistent levels. There are pockets and holes
that form which may trap and strand fish as the water drains. During
some years, the bypasses do not have enough water or retain water long
enough to allow fish to enter the bypasses, spawn, and then grow to a
size that will allow them to out-migrate. The artificial systems of the
Yolo and Sutter bypasses, as currently managed, cannot be relied upon
to recover the splittail. The bypasses provide accessible and suitable
splittail spawning habitat only during wet years where the water
consistently remains on the bypasses for an extended period of time, as
in 1995.
B. Overutilization for commercial, recreational, scientific, or
educational purposes. Overutilization is not known to be a factor
affecting this species. Some scientific collecting is conducted for
splittail but these activities do not adversely affect this species.
Striped bass anglers report occasional use of splittail as bait, but
this usage is thought to have little effect on the species. A small
fishery for splittail used to exist in the Sacramento River (Daniels
and Moyle 1983, Caywood 1974). However, no recent records of splittail
harvest exist, probably because little or no harvest now occurs due to
its declines. Records of splittail harvest are also sketchy because
identification of this species is often confused with other nongame
species. No other recreational or educational uses of this species
exist that may affect its abundance.
C. Disease or predation. Predation is thought to be a relatively
minor factor affecting the Sacramento splittail, especially compared to
the other factors discussed in this final rule. Striped bass and other
predatory fish are attracted to concentrated prey at fish salvage
release sites, such as occur at Clifton Court Forebay. The salvaged
fish, including splittail, are collected from holding wells of the
salvage facilities, placed in the salvage trucks, transported to the
release sites, and deposited in bulk from a pipe running from the truck
to a near-shore area, thus resulting in predator attraction. Fifty
percent of the released fish are lost (Scott Barrow, CDFG, pers. comm.
1995). These losses are largely due to attraction of predatory fish to
the release site of the salvage operations. Splittail and striped bass,
however, coexisted for decades in the Estuary and recent declines in
splittail have occurred in conjunction with striped bass population
declines. Increases in striped bass populations could threaten reduced
numbers of splittail. Recently, the CDFG has foregone striped bass
stocking or modified their striped bass management because of potential
harm to federally listed Sacramento River winter-run chinook salmon and
delta smelt.
Susceptibility to disease, due to poor water quality, may be a
factor in the decline of splittail. Workers at State and Federal water
project facilities in the south Delta have reported high incidences of
adult splittail in poor health. The south Delta is dominated by San
Joaquin River flow, a large part of which is made up of agricultural
drainage. Pesticides (e.g., chlorpyrifos, carbofuran, and diazinon),
salts (e.g., sulfates, selenium), and total dissolved solids from this
drainage are concentrated by reverse San Joaquin River flows and result
in poor water quality (Dennis Westcot, Central Valley Regional Water
Quality Control Board, pers. comm.).
D. The inadequacy of existing regulatory mechanisms. Regulatory
mechanisms currently in effect do not adequately protect the splittail
or its habitat. This species is not listed by the State of California.
We are analyzing the potential effects on splittail and other fish
and wildlife resources in California as a result of enactment of the
CVPIA (Pub. L. 102-575) under the National Environmental Policy Act
(NEPA) and the Programmatic Environmental Impact Statement currently
under development. The CVPIA may benefit the splittail, but does not
adequately protect the species at this time. Two of the stated purposes
of the CVPIA are to ``protect, restore, and enhance fish, wildlife, and
associated habitats in the Central Valley and Trinity River basins of
California'' and ``to contribute to the State of California's interim
and long term efforts to protect the San Francisco Bay-Sacramento-San
Joaquin Delta Estuary.'' Section 3406(b)(2) dedicates 800,000 acre-feet
of Central Valley Project yield annually to implement fish, wildlife,
and habitat restoration, and to help federally listed species. The
800,000 acre-feet identified in the CVPIA may be used to meet the DOI's
obligations under the Bay-Delta Accord (discussed below). The rest of
the water can be used for instream flows, additional Delta outflow, and
the other purposes of the CVPIA. Because of the multiple purposes of
the CVPIA, flows may be provided at times of the year that may not
benefit splittail, such as spawning flows in the fall for salmon.
Additionally, because of the need to balance these flows for all uses
under the CVPIA, certain spring flows may be less than what is fully
needed for spring spawning of splittail. We anticipate that splittail
will benefit from implementation of the CVPIA, although the magnitude
and timeliness of these protections may be inadequate to prevent
further decline of splittail. On November 20, 1997, the DOI announced
its decision regarding use of the 800,000 acre-feet of water identified
in the CVPIA. The decision is to be implemented for the next 5 years
and involves not only upstream actions but also actions in the Delta
which may benefit splittail. However, since the Central Valley Project
represents only a portion of the water development projects in the
Central Valley, the CVPIA is likely insufficient to fully protect
splittail at this time.
Protective measures currently being implemented to benefit the
delta smelt may benefit the splittail, such as restrictions on pumping
under certain conditions. However, the ecological requirements of these
species differ, especially with respect to timing of important
development stages and habitat uses. Unlike delta smelt, splittail
require flooded lowland habitat for spawning and are particularly
vulnerable to disturbance or destruction of marshy habitat.
[[Page 5975]]
The Suisun Bay area, including Suisun Marsh, is the best known
habitat for splittail, but this habitat has been adversely altered by
higher salinities in the spring. These higher salinities are caused by
operations of reservoirs that divert water to storage as well as
exports from the Delta that allow seawater to intrude farther upstream
in Suisun Marsh. Prior to the Bay-Delta Accord/WQCP, there were
relatively few periods when freshwater outflows of any significance
were mandated to be released through the Delta and Suisun Bay for
wildlife or fisheries. State and Federal agencies had planned to
increase 1991 and 1992 water supplies for out-of-stream uses at the
expense of environmental protection of estuarine fish and wildlife
resources in the fifth and potentially sixth years of drought (Morat
1991). Because of significantly higher than normal precipitation and
subsequent higher instream flows after March 1991, a State agency
request for relaxation of Delta water quality standards was withdrawn.
Subsequently, on December 15, 1994, the Federal government, the
State of California, and urban, agricultural and environmental
interests agreed to the Principles for Agreement on a comprehensive,
coordinated package of actions designed to provide interim protection
to the San Francisco Bay and Sacramento-San Joaquin River Delta
Estuary. That agreement is referred to as the 1994 Bay-Delta Accord
(Accord). The Accord was recently extended to December 15, 1999. The
Accord established parameters to protect the beneficial uses of the
Bay-Delta Estuary. Among these beneficial uses are objectives to ensure
adequate Delta outflow for the maintenance of suitable habitat for
various life stages of aquatic organisms and objectives for export
limits to protect the habitat of estuarine-dependent species and reduce
their entrainment at the major export pumps in the southern Delta.
The X2 standard provides outflows to maintain low salinity (2 parts
per thousand) habitat at three distinct areas in the Bay-Delta: 1) the
confluence of the Sacramento and San Joaquin rivers, 2) Chipps Island,
and 3) Roe Island. Compliance of this standard will provide variability
for aquatic organisms and aid in their recovery. The E/I ratio
establishes a combined export rate (Clifton Court Forebay inflow plus
export at the Tracy Pumping Plant) based on the best available estimate
of the Eight River Index. When the estimate of the Eight River Index is
ultimately made, the export facilities may then pump a set percentage
of Delta inflow. Although these parameters will likely protect fish and
wildlife, they have not been adequately tested over the past 4 years
due to the extreme wet conditions.
Present regulatory processes do not ensure that water inflows to
Suisun Bay and the western Estuary will be adequate to maintain the
mixing zone near or in Suisun Bay to benefit splittail. The SWRCB has
the authority to condition or require changes in the amount of water
inflow and the amount of water exported or diverted from the Delta. In
testimony given before the SWRCB's Water Quality/Water Rights Hearings
in 1987, one of our biologists expressed concern for several Delta
species, including splittail (Lorentzen 1987). The SWRCB did not take
regulatory or legal action to protect this fish or its habitat during
the following 4 years. On May 1, 1991, the SWRCB adopted the WQCP for
Salinity for the San Francisco Bay-Sacramento-San Joaquin Delta Estuary
(1991 Bay/Delta Plan). On September 3, 1991, under provisions of the
Clean Water Act, the USEPA disapproved certain water quality standards
due to the SWRCB's failure to adopt criteria to protect estuarine
habitat. In April 1992, the Governor of California announced a new
water policy that included a directive to the SWRCB to establish
``interim measures'' to reverse the decline of fishes in the Bay and
Delta. Accordingly, the SWRCB released an interim water quality plan
(Draft Decision 1630) in December 1992 that immediately was suspended
by the Governor. In 1993, the USEPA began the process of forming
replacement standards for those portions of the 1991 Bay/Delta Plan
that were disapproved.
Before USEPA's final rule on Water Quality Standards for Surface
Waters of the Sacramento River, San Joaquin River, and San Francisco
Bay and Delta became effective on December 14, 1994, and as a result of
Bay-Delta Accord that was signed on December 15, 1994, the SWRCB issued
and adopted Water Rights Order 95-6. The protections contained in this
Water Rights Order were determined to be roughly equivalent to the
protections in USEPA's final rule on water quality standards, and
USEPA's rule was withdrawn. Although the SWRCB has issued a draft
Environmental Impact Report (EIR), no long term implementation plan has
been developed or actually implemented for the new water quality plan.
Substantial opposition exists to certain implementation measures
identified in EIR. Institutional guarantees of compliance have been
lacking in the past and are needed in the future before existing
mechanisms can contribute to protection of this species. Records show
that the previous salinity standards contained in the SWRCB's Water
Rights Decision 1485 were inconsistently implemented and frequently
violated.
Among other things, the Bay-Delta Accord was intended to provide
for increased flexibility in the water project operations to respond to
ecological needs. Appropriate use of this increased flexibility may
have demonstrated that the established regulatory mechanisms were
sufficient to protect splittail. However, even though splittail were
proposed for listing before the Bay-Delta Accord was signed, water
project operations have rarely been changed to provide protection for
splittail. In 1995, for example, a wet year that afforded opportunities
to significantly reverse the decline of splittail while maintaining
water supply, more than 6.3 million juvenile splittail were entrained
at the CVP and SWP facilities in 2 months from late April to late June.
Of these fish, at least 50 percent were lost due to transport and
release. Predation in Clifton Court Forebay, inefficiency in screening
fish from diversion facilities, and handling most likely increased this
percentage. Despite the availability of the mechanism for increased
flexibility in project operations provided by the Bay-Delta Accord,
operations of the CVP and SWP were changed for only one 3-day period in
late June of 1995 to minimize entrainment of splittail. Thus, an
opportunity to significantly increase abundance and distribution of
splittail, and the opportunity to reverse the decline of the species
was lost.
As a direct result of a Framework Agreement, the Federal and State
governments established the CALFED Bay-Delta Program (Program). This
Program is a cooperative effort of the DOI, the U.S. Department of
Commerce, the USEPA, the California Environmental Protection Agency,
and the California Resources Agency, with the involved public formally
participating through the Bay-Delta Advisory Council. The mission of
the Program is to develop a long term comprehensive plan that will
restore ecological health and improve water management for all
beneficial uses of the Bay-Delta system. The plan will specifically
address fish and wildlife protection, water supply reliability, levee
stability, and water quality issues in the Delta. We are an active
participant in the Program and we believe that the eventual
implementation of the plan will contribute to the protection and
recovery of the Sacramento splittail. However, the plan is not yet
developed;
[[Page 5976]]
we cannot evaluate specific conservation measures until they have been
identified, described, and committed to in an approved final plan.
As a result of the Bay-Delta Accord, a program was established to
implement non-flow related actions to benefit fish and wildlife
resources. This program is known as Category III. The Category III
program is funded by Federal, State, and non-governmental organizations
and was funded with $60 million annually for the first 3 years of the
Bay-Delta Accord. There was approximately $10 million dollars funded in
the first year by the Metropolitan Water District (MWD). The MWD
contributed the same amount in the second year, with approximately $2-4
million contributed by other water districts and agencies. In November
1996, California voters passed Proposition 204, which provided State
funds for the Category III activities as well as other CALFED
activities. In 1997 the Federal government passed an $85 million
appropriation for Category III activities and CALFED functions. In the
Fall of 1997, CALFED awarded $60.6 million dollars toward proposals
under the Category III program. Some of these proposals will benefit
splittail through habitat enhancement or restoration. Some of these
projects have been implemented. However, due to the time frame required
to see if the project has met its objective, that is, to provide
suitable spawning habitat for splittail, we cannot determine if these
projects will be successful. However, because Category III projects are
not intended to enhance flow conditions in the Delta or its
tributaries, it cannot provide needed flows.
E. Other natural or manmade factors affecting its continued
existence. Splittail are vulnerable to natural events, such as drought,
because of the consistent decline in population indices and severely
constricted range and distribution. Drought will reduce the available
spawning area for the splittail because of reduced instream flows.
Because the range is already restricted and the population has
declined, a prolonged natural event such as drought (compounded by
exports and diversions described in Factor A) could endanger the
splittail.
Unscreened or inefficiently screened municipal, agricultural, and
industrial water diversions and other water facilities are a
significant problem for the splittail. It is estimated that there are
currently over 1800 unscreened diversions in the Delta. Screens are
currently designed for striped bass and salmonids. Approach velocities
and mesh sizes are therefore not appropriate for splittail. Behavioral
barriers (louver screens) at the State and Federal salvage facilities
that were designed using striped bass and salmonid criteria, also are
not appropriate for splittail. Release sites for salvaged fish attract
predators, likely resulting in low survivorship overall (Lloyd Hess,
BOR, pers. comm. 1995). Also, it is likely that few young survive
salvaging at the Federal and State pumping plants because juveniles of
most fish species are more delicate than adults.
Poor water quality also may adversely affect splittail, through
direct exposure to toxins, which increases vulnerability to disease as
described above in Factor C, and depletion of zooplankton and
invertebrate food sources. All major rivers that are tributary to the
Estuary are exposed to large volumes of agricultural and industrial
chemicals that are applied in the Central Valley watershed (Nichols et
al. 1986). Agricultural chemicals and their residues, as well as
chemicals originating in urban runoff, find their way into the rivers
and Estuary. Approximately 10 percent of the total pesticide use in the
United States occurs in the Sacramento and San Joaquin River watersheds
(Kuivila and Foe 1995). Recently, high concentrations of
organophosphate and carbamate pesticides from agricultural uses have
been documented entering the Estuary. These pesticides are acutely and
chronically toxic to zooplankton and fishes as far west as Martinez in
Suisun Bay and as far south as Vernalis on the San Joaquin River (Foe
1995, Bailey et al. unknown date). The periods of pesticide use
coincide with the timing of migration, spawning, and early development
of splittail. During rainfall runoff events, acutely toxic pulses of
pesticides move down the rivers and through the Estuary with remarkable
persistence and relatively little dilution (Kuivila and Foe 1995).
Toxicology studies of rice field irrigation drain water of the
Colusa Basin Drainage Canal have documented significant toxicity of
drain water to striped bass embryos and larvae, Oryzias latipes larvae
(in the Cyprinodontidae family), and opossum shrimp, which is the major
food organism of striped bass larvae and juveniles (Bailey et al.
1991), as well as all age classes of splittail. This drainage canal
flows into the Sacramento River just north of the City of Sacramento.
The majority of drain water samples collected during April and May 1990
were acutely toxic to striped bass larvae (96-hour exposures); this was
the third consecutive year rice irrigation drain water from the Colusa
Basin was acutely toxic (Bailey et al. 1991). Splittail may be
similarly affected by agricultural and industrial chemical runoff,
particularly because, like striped bass, adults migrate upriver to
spawn and young rear upriver until waters recede in late spring.
Some heavy metal contaminants have been released into the Estuary
from industrial, urban, and mining enterprises. While the effects of
these contaminating compounds on splittail larvae and their zooplankton
food resources are not well known, the compounds could adversely affect
survival. In addition, increases in urban development in the Sacramento
Valley will continue to result in concurrent increases in urban runoff.
Selenium has been found in aquatic organisms (Saiki and Lowe 1987,
Henderson et al. 1995) and fish species in the San Joaquin River
watershed (Nakamoto and Hassler 1992). Selenium has been shown to cause
reproductive failure, developmental defects, and mortality of fish
species (Hermanutz 1992, Skorupa et al. 1996).
In recent years, untreated discharges of ship ballast water has
introduced exotic aquatic species to the Estuary ecosystem (Carlton et
al. 1990). Several exotic species may adversely affect the splittail.
An Asian clam (Potamocorbula amurensis), introduced as veliger larvae
in 1986, was first discovered in Suisun Bay during October 1986. By
June 1987, the Asian clam was widespread in Suisun, San Pablo, and San
Francisco bays irrespective of salinity, water depth, and sediment type
at densities greater than 10,000 individuals per square meter. Asian
clam densities declined to 4,000 individuals per square meter as the
population aged during the year (Carlton et al. 1990). Persistently low
river outflow and concomitant elevated salinity levels may have
contributed to this species' population explosion (Carlton et al.
1990). The Asian clam could potentially play an important role in
affecting the phytoplankton dynamics in the Estuary. The clam may have
an effect on higher trophic levels by decreasing phytoplankton biomass.
The Chinese mitten crab (Eriocheir sinensis), has also been
recently introduced to the Delta, either by deliberate release to
establish a fishery or through accidental release via ballast water.
The Chinese mitten crab has interfered with the ability to effectively
salvage fish at the export facilities by clogging the internal piping.
Historically, Eurytemora affinis, the native euryhaline copepod,
has been the most important food for larval fishes in the Estuary.
Three non-native species of euryhaline copepods (Sinocalanus
[[Page 5977]]
doerrii, Pseudodiaptomus forbesi, and P. marinus) became established in
the Delta between 1978 and 1987 (Carlton et al. 1990), while E. affinis
populations have declined since 1980. It is not known if the exotic
species have displaced E. affinis or whether changes in the estuarine
ecosystem now favor S. doerrii and the two Pseudodiaptomus species
(Moyle et al. 1989). Sinocalanus doerrii is difficult for larval fishes
to catch because of its fast swimming and effective escape response
(Meng and Orsi 1991). Reduced feeding efficiency and ingestion rates
weaken and slow the growth of splittail young and make them more
vulnerable to starvation or predation.
We have carefully assessed the best scientific and commercial
information available regarding past, present, and future threats faced
by this species in this listing determination. Sacramento splittail
have declined by 62 percent over the last 15 years. This species has
been effectively extirpated from the majority of its range and is now
vulnerable to numerous threats in the Estuary as discussed above.
Because Sacramento splittail are long-lived, their decline has been
gradual, and extinction is not imminent, listing the splittail as
endangered would not be appropriate. Although this species is not in
imminent danger of extinction, it is likely to become endangered in the
foreseeable future if present threats and current population trends
continue. Therefore, based on the evaluation of all available
information on abundance, present distribution, and threats to this
species, we have determined that listing the Sacramento splittail as
threatened is appropriate at this time. Critical habitat is not
designated for reasons discussed in the ``Critical Habitat'' section of
this rule.
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) the
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with section 4 of the Act, on which
are found those physical or biological features (I) essential to the
conservation of the species and (II) which may require special
management considerations or protection and; (ii) specific areas
outside the geographical area occupied by a species at the time it is
listed, upon determination that such areas are essential for the
conservation of the species. ``Conservation'' as defined in section
3(3) of the Act means the use of all methods and procedures needed to
bring the species to the point at which listing under the Act is no
longer necessary.
Section 4(a)(3) of the Act, and implementing regulations (50 CFR
424.12) require that, to the maximum extent prudent and determinable,
the Secretary designate critical habitat at the time the species is
listed. The regulations (50 CFR 424.12(a)(1)) state that designation of
critical habitat is not prudent when one or both of the following
situations exist--(1) the species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species, or (2) such
designation of critical habitat would not be beneficial to the species.
We have determined that designation of critical habitat for the
Sacramento splittail is not prudent.
Critical habitat receives consideration under section 7 of the Act.
Section 7(a)(2) requires Federal agencies to consult with the Service
to ensure that any action they carry out, authorize, or fund does not
jeopardize the continued existence of a federally listed species or
destroy or adversely modify designated critical habitat. The Service's
implementing regulations (50 CFR part 402) define ``jeopardize the
continuing existence of'' and ``destruction or adverse modification
of'' in very similar terms. To jeopardize the continuing existence of a
species means to engage in an action ``that reasonably would be
expected, directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species by reducing the
reproduction, numbers, or distribution of that species.'' Destruction
or adverse modification of habitat means a ``direct or indirect
alteration that appreciably diminishes the value of critical habitat
for both the survival and recovery of a listed species in the wild.''
Common to both definitions is an appreciable detrimental effect to both
the survival and recovery of a listed species.
For any listed species, an analysis to determine jeopardy under
section 7(a)(2) would consider impacts to the species resulting from
impacts to habitat. Therefore, an analysis to determine jeopardy would
include an analysis closely parallel to or, for the splittail,
equivalent to an analysis to determine adverse modification of critical
habitat. For the Sacramento splittail, any modification to suitable
habitat within the species' range has the potential to affect the
species. Actions that may affect the habitat of the splittail include,
but are not limited to--(1) reduction of fresh water flows, (2)
degradation of water quality, (3) reduction in the quality or quantity
of flooded vegetation, (4) alteration of shallow water areas containing
submergent (under water) and/or emergent (above the water surface)
vegetation, and (5) construction of structures that interfere with
migration patterns or block free access to spawning or rearing areas.
Although the splittail is a wide ranging species, actions affecting
habitat can have relatively large impacts to the population. For
example, an activity that destroys or degrades, or blocks access to, an
important spawning site could result in reproductive failure of a
significant portion of the population affecting population size and age
structure in following years. For the Sacramento splittail, we have
determined that, were critical habitat designated, it would include no
areas that would not be subject to consultation under the jeopardy
standard. Moreover, we have determined that the level of habitat impact
necessary to result in a determination of destruction or adverse
modification of critical habitat (were we to designate critical habitat
for the splittail) would also result in a determination of jeopardy to
the species. Therefore, were critical habitat to be designated for the
splittail, no additional section 7 consultations beyond those caused by
the listing itself would take place, nor would the practical result of
any such consultations differ.
To date, we have prepared 284 conference reports for the Sacramento
splittail for projects involving changes in hydrology, availability of
spawning habitat, migratory cues, and other behavioral patterns as well
as potential increase in entrainment. Three of these conferences
resulted in initial draft jeopardy determinations. These draft jeopardy
determinations provide evidence that, by their very nature, impacts to
splittail habitat that would result in a determination of adverse
modification would result in a determination of jeopardy to the
species. For these projects, the habitat impacts were the primary basis
for the jeopardy determinations.
The three projects that resulted in initial draft jeopardy
conference reports included the proposed Delta Wetlands Project (March
1996) (this project has since been modified to avoid jeopardy),
proposed modifications to the south Delta Temporary Barrier Program
(January 1997), and the proposed Interim South Delta Program (April
1998). The consultations and conferences for these projects addressed
the adverse effects on the delta smelt, its critical habitat, and the
Sacramento
[[Page 5978]]
splittail. With respect to each project, we concluded that it was
likely to jeopardize the continued existence of both species, and to
cause the destruction or adverse modification of the delta smelt's
critical habitat. In each of these examples, we expressly found that an
activity that would destroy or adversely modify critical habitat for
the delta smelt would also jeopardize its continued existence. In each
case, the project's primary impacts to the splittail, and the primary
bases for our conclusion that the splittail would be jeopardized by the
project, were habitat impacts. Moreover, had critical habitat been
proposed for the splittail, neither these conferences nor any of the
others regarding the splittail would have resulted in a finding of
adverse modification without a complementary finding of jeopardy.
Apart from section 7, the Act provides no additional protection to
lands designated as critical habitat. Designating critical habitat does
not create a management plan for the areas where the species occurs;
does not establish numerical population goals or prescribe specific
management actions (inside or outside of critical habitat); and does
not have a direct effect on areas not designated as critical habitat.
A designation of critical habitat that includes private lands would
only affect actions where a Federal nexus is present and would not
confer any additional benefit beyond that already provided through
section 7 consultation under the jeopardy standard. Designation of
critical habitat on private lands could, however, result in a detriment
to the species. The regulatory effect of critical habitat designation
is often misunderstood by private landowners, particularly those whose
property boundaries are included within a general description of
critical habitat for a species. In the past, landowners have mistakenly
believed that critical habitat designation will be an obstacle to
development and impose restrictions on the use of their property. In
some cases, landowners have believed that critical habitat designation
is an attempt by the government to confiscate their private property.
As a result of this misunderstanding, critical habitat designation has
sometimes reduced private landowner cooperation in efforts to conserve
species listed in California. Because the splittail is found in some
rivers and tributaries flowing through private lands, the cooperation
of private landowners is imperative to conserve the splittail.
Controversy resulting from critical habitat designation has been known
to reduce private landowner cooperation in the management of other
listed species (e.g., the northern spotted owl (Strix occidentalis
caurina) in Oregon, Washington, and California).
We are concerned that designating critical habitat increases the
likelihood of intentional acts of vandalism and habitat destruction due
to widespread public misunderstanding of critical habitat. Within the
general area where splittail occur, we have documented a number of
cases where habitat for listed species was deliberately vandalized or
destroyed to avoid dealing with endangered species regulatory issues.
Vernal pools, which provide habitat for several listed and candidate
species, including the giant garter snake (Thamnophis gigas), have been
affected negatively by landowners rerouting stream courses in order to
eliminate potential endangered species regulatory effects (F. Muth,
Fish and Wildlife Service, pers. comm.). We have documented the
deliberate destruction of habitat for giant garter snakes (K. Hornaday,
Fish and Wildlife Service, pers. comm.) and valley elderberry longhorn
beetles (Desmocerus californicus dimorphus) (B. Cordone, Fish and
Wildlife Service, pers. comm.; S. Pearson, Fish and Wildlife Service,
pers. comm.; D. Weinrich, Fish and Wildlife Service, pers. comm.; B.
Twedt, Fish and Wildlife Service, pers. comm.) along irrigation canals
within the same general areas where the splittail occurs. We are
concerned that designation of critical habitat for the splittail may
precipitate further habitat destruction affecting splittail and the
other species in these habitats.
We acknowledge that in some situations critical habitat designation
may provide some value to the species by notifying the public about
areas important for the species' conservation and calling attention to
those areas in special need of protection. However, in the case of the
splittail, we have already spent enormous effort on public outreach and
education and believe that critical habitat designation for the
splittail would not provide any further notification or education
benefit. Subsequent to the publication of the proposed rule to list the
splittail, we initiated an extensive public outreach strategy to inform
and educate the general public and interested parties within the range
of the species. We sent out press releases to local newspapers,
contacted elected officials, Federal, State, and county agencies, and
interested parties, including private landowners. We also provided the
Recovery Plan for the Sacramento/San Joaquin Delta Native Fishes that
addresses eight fish species including the splittail to these same
interested parties. We will continue to inform and educate the public
and private landowners within the range of the species through the
dissemination of additional information including copies of the final
rule, fact sheets, and question and answer sheets explaining relevant
parts of the Act to the parties listed above.
In addition, up-to-date information about the splittail and its
habitat, as well as detailed information about the Bay-Delta ecosystem
and other areas critical to conserving species that utilize the Bay-
Delta, is already widely disseminated to private landowners and to
entities or individuals that may propose projects that could affect
splittail. As discussed above in Factor E in the ``Summary of Factors
Affecting the Species'' section, the CALFED Program is a cooperative
effort to develop a long term comprehensive plan to restore ecological
health and improve water management for all beneficial uses of the Bay-
Delta system. In the process of developing a long term plan, CALFED has
held numerous public meetings, workshops, and hearings throughout the
State to receive information from the public, as well as to inform the
public about the program's goals and ecological needs of the species,
including splittail. CALFED maintains an extensive mailing list in
order to keep landowners, local, State, and Federal entities, as well
as the interested public, apprised of CALFED's actions and the
ecological needs of the species that utilize the Bay-Delta ecosystem
and other areas necessary for the conservation of species, including
splittail.
Regarding any potential benefit provided by informing other Federal
and State agencies about the splittail, the knowledge of the range and
habitat requirements for this species is well known by Federal
agencies, as is evidenced by the 284 conference reports we have
prepared addressing the splittail. The Service's Sacramento Field
Office stores information about the ranges of listed and other
sensitive species by USGS 7\1/2\ quad maps in a database. When a
Federal agency notifies the Service about a potential project they may
authorize, fund, or carry out, the Service does a database search and
provides a list of species that may be affected by the proposed action.
The plants and animals that are included on the species list are those
that may be affected, either directly or indirectly, by the proposed
project. Fish and other aquatic species including the splittail appear
on the species list if they are in the same watershed as the proposed
action. In other words,
[[Page 5979]]
splittail appear on a species list if the action occurs anywhere in the
Central Valley of California, including all rivers and the tributaries
that drain to these rivers. This database is updated if new information
about a species is made available. Use of this database provides a
superior means of providing information about a species' location to a
Federal agency.
Because of the sensitivity of the water community in California,
State, Federal, and private water users are also very aware of the
species range and habitat requirements. This knowledge extends to local
reclamation boards, county boards of supervisors, individual water
districts as well as a large number of private individuals. Private
consultants, who provide the biological expertise for all of the above
mentioned publics, have developed extensive knowledge of the current
range, habitat requirements, and potential effects of project proposals
on the splittail. Designation of critical habitat would not cause us to
provide different or additional information to these entities for the
purposes of preserving and/or recovering the species.
We have evaluated the potential notification and education benefit
offered by critical habitat designation and find that, for the
splittail, there would be no additional benefit over the current
outreach and interagency coordination process currently in place.
Notification and education can be conducted more effectively by working
directly with landowners and communities through the recovery
implementation process and, where a Federal nexus exists, through
section 7 consultation and coordination. Critical habitat designation
for the splittail would provide no further notification or education
benefit. In addition, these existing processes preclude problems and
potential risks associated with confusion and misunderstanding that may
accompany a critical habitat designation.
Critical habitat designation can also aid in the development of a
species' recovery plan by identifying the areas needing protection or
requiring special management considerations. However, we have already
developed the Recovery Plan for the Sacramento/San Joaquin Delta Native
Fishes that addresses eight fish species, including the Sacramento
splittail. The Recovery Plan identifies the important habitat areas for
the splittail.
In summary, we have determined that the designation of critical
habitat for the splittail would not be beneficial to the species. For
the splittail, the section 7 consultation process will produce a
jeopardy analysis that has results equivalent to a critical habitat
adverse modification analysis. We already provide private landowners
and agencies with up-to-date information on important areas for the
splittail. Federal agencies are already engaged in splittail
conservation efforts, and we will continue to provide them with up-to-
date information on areas important for splittail conservation. We have
completed recovery planning for the species, and we will review the
information in the recovery plan periodically to determine if updates
and revisions are needed. Finally, even if designation of critical
habitat for the splittail would provide some small, incremental benefit
to the species, that benefit is outweighed by the increased risk of (1)
controversy that would hamper recovery efforts or (2) vandalism. Based
on this analysis, we conclude that designation of critical habitat for
the Sacramento splittail is not prudent.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. We initiate such actions following
listing. The protection required of Federal agencies and the
prohibitions against taking and harm are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer informally with us on any action that is likely to jeopardize
the continued existence of a proposed species or result in destruction
or adverse modification of proposed critical habitat. If a species is
subsequently listed, section 7(a)(2) requires Federal agencies to
insure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into consultation with us.
Federal actions that may affect the splittail include, but may not
be limited to, those actions authorized, carried out, or funded by the
Corps, BOR, National Marine Fisheries Service (NMFS), FERC, and USEPA.
The Corps funds projects and issues permits for water pumping and
diversion facilities, levee construction or repair, bank protection
activities, deep-water navigation channel dredging and dredge spoil
disposal projects, sand and gravel extraction, marina and bridge
construction, diking of wetlands for conversion to farmland, and tidal
gate or barrier installation. The BOR and DWR construct, operate, and
manage water storage and delivery facilities. The FERC licenses and re-
licenses hydroelectric power facilities, that manipulate instream
flows, in the tributaries to the Sacramento and San Joaquin rivers. The
USEPA reviews State water quality standards and promulgates replacement
standards pursuant to the Clean Water Act if State standards are found
to be inadequate. In 1991, USEPA disapproved portions of the SWRCB's
WQCP for salinity in the Estuary. Subsequent to that decision, the
USEPA developed new water quality standards to replace those that were
disapproved. The USEPA published a proposed rule in December of 1993
requesting comments. Prior to finalizing the final rule, the State
developed new water quality standards and proposed a new WQCP, 95-1WR,
which was implemented, in-part, through Water Rights Order 95-6. The
USEPA determined that the State's standards provided equivalent or
better protection and has withdrawn the Federal proposal. The State is
in the process of developing an implementation plan to fully achieve
the goals of the WQCP, and is hearing testimony on many issues.
The Sacramento splittail proposed rule was published January 6,
1994. During the last 4 years, 284 conference opinions have been
developed for projects proposed by various Federal agencies. We are
prepared to adopt all conference opinions as final biological opinions
for the Sacramento splittail, provided that the respective agencies
request the adoption in writing and the reinitiation criteria listed
under 50 CFR 402.16 do not apply. If there have been no significant
changes in an action as planned or in the information used during the
conference, we will confirm the conference opinion as the biological
opinion on the project, and no further section 7 consultation will be
necessary.
[[Page 5980]]
However, reinitiation of formal consultation is required where
discretionary Federal agency involvement or control over the action has
been maintained (or is authorized by law) and if--(1) the amount or
extent of incidental take is exceeded; (2) new information reveals that
the agency action may affect listed species or critical habitat in a
manner or to an extent not considered in this opinion; (3) the agency
action is subsequently modified in a manner that causes an effect to
the listed species or critical habitat that was not considered in this
opinion; or (4) a new species is listed or critical habitat designated
that may be affected by the action. In instances where the amount or
extent of incidental take is exceeded, any operations causing such take
must cease pending reinitiation.
Under section 4 of the Act, listing the splittail provides
additional impetus for development and implementation of a recovery
plan to bring together Federal, State, and private efforts to develop
conservation strategies for this species. We convened the Delta Native
Fishes Recovery Team to prepare a recovery plan for declining native
fishes in the Estuary. The draft recovery plan developed a framework
for agencies to coordinate activities and cooperate with each other in
conservation efforts. It also set recovery priorities and estimated
costs of various tasks necessary to accomplish recovery goals. Site-
specific management actions necessary to achieve survival and recovery
of splittail and other fishes native to the Estuary ecosystem were also
described in this draft plan. The draft recovery plan was released for
public review and comment on January 8, 1995 (60 FR 2155). Notice of
availability of the final plan was published in the Federal Register on
November 26, 1996 (U.S. Fish and Wildlife Service 1996).
The Act and implementing regulations set forth a series of general
prohibitions and exceptions that apply to all threatened wildlife. The
prohibitions, codified at 50 CFR 17.21 and 17.31, in part, make it
illegal for any person subject to the jurisdiction of the United States
to take (including harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, collect, or attempt any such conduct), import or export,
transport in interstate or foreign commerce in the course of commercial
activity, or sell or offer for sale in interstate or foreign commerce
any listed species. It also is illegal to possess, sell, deliver,
carry, transport, or ship any such wildlife that has been taken
illegally. Certain exceptions apply to agents of the Service and State
conservation agencies.
Our policy, as published in the Federal Register on July 1, 1994
(59 FR 34272), is to identify to the maximum extent practicable at the
time a species is listed those activities that would or would not
constitute a violation of section 9 of the Act if a species is listed.
Section 9 of the Act prohibits certain activities that directly or
indirectly affect listed species. The intent of this policy is to
increase public awareness of the effect of a proposed listing on
proposed and ongoing activities within a species' range. We believe
that, based on the best available information, the following actions
will not result in a violation of section 9, provided these actions are
carried out in accordance with any existing regulations and permit
requirements:
(1) Routine levee road maintenance;
(2) Weed and brush control on levees above the mean higher high
water mark or the ordinary high water mark;
(3) Aquatic recreational activities;
(4) Actions that may affect splittail that are authorized, funded
or carried out by a Federal agency, when the action is conducted in
accordance with an incidental take statement issued by the Service
pursuant to section 7 of the Act, and;
(5) Actions that may affect splittail that are not authorized,
funded or carried out by a Federal agency, when the action is conducted
in accordance with an incidental take permit issued by the Service
pursuant to section 10(a)(1)(B) of the Act.
Activities that we believe could potentially harm the Sacramento
splittail and result in ``take'' include, but are not limited to:
(1) Diversion of water from any river or stream or other water
course that results in the entrainment, injury or death of splittail,
including stranding of eggs, larvae, juveniles or adults; or diversions
that result in the degradation of waters containing splittail;
(2) Levee slope and bank protection that occurs below the mean
higher high water mark or the ordinary high water mark of a water body
that results in the loss of shallow water habitat used by splittail for
spawning and rearing;
(3) Dredging in any river or stream or other water body that
contains Sacramento splittail including dredging in flooded areas where
splittail may be spawning, or dredging that results in the degradation
of waters containing splittail;
(4) Discharge of fill material into a water body supporting
splittail that results in the destruction or degradation of spawning
and rearing habitat, substrate composition, water salinity, water
quality, channel stability, or migratory corridors;
(5) Discharge or dumping of toxic chemicals, pesticides, organic
wastes or other pollutants into a water body supporting splittail, or
discharge or dumping of pollutants that results in the degradation of a
water body containing splittail; and
(6) Unauthorized collection of splittail.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Sacramento Office (see ADDRESSES section).
Permits may be issued to carry out otherwise prohibited activities
involving threatened wildlife species under certain circumstances.
Regulations governing permits for threatened species are codified at 50
CFR 17.32. Permits for threatened species are available for scientific
purposes, to enhance the propagation or survival of the species, and/or
for incidental take in connection with otherwise lawful activities. For
threatened species, permits are available for zoological exhibition,
educational purposes, or special functions consistent with the purposes
of the Act. Requests for copies of the regulations on listed species
and inquiries regarding permits may be addressed to the U.S. Fish and
Wildlife Service, Ecological Services, Endangered Species Permits, 911
NE 11th Avenue, Portland, Oregon 97232-4181 (telephone 503-231-6241;
facsimilie 503-231-6243).
National Environmental Policy Act
We have determined that Environmental Assessments and Environmental
Impact Statements, as defined in the National Environmental Policy Act
of 1969, need not be prepared in connection with regulations adopted
pursuant to section 4(a) of the Endangered Species Act of 1973, as
amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).
Paperwork Reduction Act
This rule does not contain any new collections of information other
than those already approved under the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., and assigned Office of Management and Budget
clearance number 1018-0094. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid control number. For additional
information concerning
[[Page 5981]]
permit and associated requirements for threatened species, see 50 CFR
17.32.
References Cited
A complete list of all references cited in this rule are available
upon request from the Sacramento Fish and Wildlife Office (see
ADDRESSES section).
Authors
The primary author of this rule is Michael G. Thabault, U.S. Fish
and Wildlife Service, Sacramento Office (see ADDRESSES section).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.
2. In Sec. 17.11(h) add the following to the List of Endangered and
Threatened Wildlife in alphabetical order under ``FISHES:'
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
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Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
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Fishes
* * * * * * *
Splittail, Sacramento............ Pogonichthys U.S.A. (CA)........ Entire............. T 656 NA NA
macrolepidotus.
* * * * * * *
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Dated: February 1, 1999.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 99-2867 Filed 2-5-99; 8:45 am]
BILLING CODE 4310-55-P